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Cartagena v. Commissioner of Social Security

March 27, 2008


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



Plaintiff Evelyn Cartagena 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 to deny her application for disability insurance benefits ("DIB"). Presently before the Court are the parties' motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The Court referred this matter to United States Magistrate Judge David E. Peebles, who reported that the Commissioner's decision was supported by substantial evidence, and recommended that the Court grant defendant Commissioner of Social Security's motion for judgment on the pleadings, affirm the Commissioner's determination of disability, and dismiss the claimant's complaint in its entirety. Presently before the Court are plaintiff's objections to the Report and Recommendation.


Neither party objects to Magistrate Judge Peebles's recitation of the background in this case. Therefore, the Court adopts the portion of the Report and Recommendation entitled "Background" in its entirety, and will provide a brief summary of the relevant facts.

The claimant, Evelyn Cartagena, was born in Buffalo, New York on September 14, 1959.

(T. 285). Plaintiff spent the majority of her childhood living in Puerto Rico, but returned to New York State in 1983 or 1984. (T. 60, 77). Her primary language is Spanish; plaintiff does not speak fluent English, nor is she able to read or write English to any significant degree. (T. 59-60, 64).

Before returning to the United States, plaintiff was employed as a secretary in Puerto Rico. (T. 60). Her most recent employment was at a coat factory in Buffalo, New York, where she worked as a sewing machine operator. (Id.). Plaintiff left this position in 1986 to care for her family, and has not been employed since that time. (Id.).

According to her medical records and testimony, plaintiff's physical and psychological difficulties began in 1995 when she was injured in a motor vehicle accident. (T. 64). As a result of the injuries she sustained during the accident, plaintiff experiences physical symptoms, including pain and weakness in her right side, and headaches that occur three to four times per week. (T. 63-64, 79, 81). The claimant also suffers from psychological symptoms and has been variously diagnosed with depression, post traumatic stress disorder, and anxiety disorder. (T. 63-65, 285, 291). Plaintiff's mental condition is the focus of the present action.


A. Treating Sources

1. Lily Kam, M.D.

Plaintiff was injured in a motor vehicle accident on September 7, 1995, and was treated at Schenectady Family Health Services for neck and back pain. (T. 245). Plaintiff received physical therapy in 1995 and 1996 and chiropractic care in 1997. (T. 221; 228-35; 302; 364; 465-68). On August 21, 1996, plaintiff began receiving treatment from Dr. Lily Kam at Schenectady Family Health Services. (T. 302, 326). Dr. Kam concluded that plaintiff suffered a whiplash injury in the accident and recommended that she continue physical therapy and chiropractic care. (T. 326). Dr. Kam also indicated that plaintiff might be suffering from Post Traumatic Stress Disorder and referred her for mental health counseling. (T. 326). Plaintiff continued treatment with Dr. Kam for chronic neck, back and hip pain, headaches and depression.

(T. 302-25;449-56).

On August 26, 1997, Dr. Kam assessed plaintiff's condition and completed a "questionnaire as to residual functional capacity psychiatric impairment". (T. 291-300). In a letter attached to the questionnaire, Dr. Kam stated she had been treating plaintiff monthly since August 21, 1996, for chronic headache syndrome, degenerative disc disease, fibromyalgia, and post traumatic stress disorder. (T. 291). Dr. Kam stated that plaintiff "frequently feels lack of energy, feelings of worthlessness, has difficulty concentrating, suffers from insomnia and occasionally has suicidal ideations." Id. Dr. Kam indicated that she was treating plaintiff with Paxil and Fiorecet and that the Paxil "seems to be helping to a certain degree." Id.

According to Dr. Kam, plaintiff's symptoms included anxiety attacks, feelings of hopelessness and helplessness, frustration, lack of concentration, memory deficits, irritability, nervousness and tremors. (T. 292). Dr. Kam described plaintiff's mental status as "normal appearance speech is clear thought content & organization obsessed on symptoms mood is depressed affect constricted, [] sensorium intellect insight and judgment slightly impaired". Id. Dr. Kam indicated that plaintiff had persistent depression, agitation, psychomotor disturbance, "structural changes mediated through psychophysiological channels", "interference with concentration and memory", and "depressive affect with insomnia, loss of weight, and/or suicidal preoccupation". (T. 293-94). Dr. Kam stated that plaintiff had tried several medications, including Zoloft, Prozac, Buspar, and Trazodone, was currently taking Paxil and Fiorcet for her headaches, and was "showing some improvement". (T. 295). Dr. Kam opined that plaintiff's degree of impairment in the following activities were moderately severe: perform daily activities; constriction of interests; understand, remember and carry out instructions; perform complex tasks; perform repetitive tasks; perform varied tasks; deal with changes in the work place; respond to supervision; respond appropriately to customary work pressures; and meet production, quality and attendance standards. (T. 297-98). Dr. Kam stated that plaintiff's degree of impairment in the following activities were moderate: relate to other people; perform work requiring frequent contact with others; perform work with minimal contact with others; perform simple tasks; and respond appropriately to co-workers. (T. 297-98). Dr. Kam concluded that work on a regular and competitive basis, even if low stress and sedentary, would likely cause decompensation or otherwise negatively affect plaintiff's psychiatric condition. (T. 299).

On July 10, 1998, Dr. Kam updated plaintiff's condition. (T. 302). Dr. Kam stated that in addition to Paxil and Fiorcet, plaintiff recently started taking Ambien because of her difficulty sleeping. Id. Dr. Kam stated that plaintiff's levels of depression and anxiety varied "but seem to be better controlled with Paxil." Id. According to Dr. Kam, recently plaintiff "has experienced increased stressors in her life" and as a result, plaintiff's symptoms had worsened and she was having problems sleeping and more frequent anxiety attacks. Id. Dr. Kam reported that plaintiff had been referred to Sunnyview Pain Clinic for her physical pain, but had been unable to participate due to anxiety. Id. Dr. Kam concluded that although plaintiff had periods of improvement, her symptoms were not resolving and substantially limited her ability to work. Id.

On February 14, 2001, Dr. Kam wrote a brief statement that plaintiff was under her care for Post Traumatic Stress Disorder with resultant anxiety disorder and depression and that she was severely disabled by this condition and required ongoing psychiatric therapy that she could not afford. (T. 487). Dr. Kam stated that plaintiff also suffered from degenerative disc disease, chronic tension headaches and fibromyalgia. Id. Dr. Kam concluded that plaintiff was incapable of working at the present time or in the near future. Id.

2. Reinaldo Cardona, Clinical Social Worker

Plaintiff began treatment with Reinaldo Cardona, CSW, on January 16, 1997 for a "mental disorder". (T. 287). In a report dated April 10, 1997, Cardona stated that he saw plaintiff approximately once a week and that she reported being extremely anxious since the motor vehicle accident in 1995. Id. According to Cardona, during the course of treatment, plaintiff displayed difficulty sleeping and concentrating; irritability and anger outbursts for no apparent reason; hypervigilance and exaggerated startle response; and an obsession with recurrent distressing thoughts of the accident. Id. Cardona reported plaintiff's mood as anxious and that he often observed tremors; a constricted affect; short term memory loss and poor concentration. Id. Cardona stated that plaintiff was oriented to time, place and person with moderately impaired insight and judgment, with no auditory or visual hallucinations or homicidal or suicidal ideation. Id. Cardona reported that plaintiff attempted to engage in activities of daily living, but had great difficulty, her household duties were quite limited and she had no interests or hobbies other than attending church. (T. 287-88). Cardona concluded that plaintiff was not able to work due to pain, difficulty concentrating, forgetfulness, and chronic headaches. (T. 288).

On October 18, 1997, Cardona summarized plaintiff's condition. (T. 285-86).

Cardona stated that he had diagnosed plaintiff with Post Traumatic Stress Disorder and Anxiety Disorder and related both conditions to the automobile accident two years earlier. (T. 285). Cardona also indicated that the back and shoulder pain caused by the accident contributed to the anxiety due to concerns about caring for her family and not being able to work. Id. Cardona stated that plaintiff frequently cried, experienced tremors, had difficulty sleeping, was frightened by shadows and noises, and was fatigued much of the day. (285-86). Cardona indicated plaintiff's fatigue would preclude her from working and stated that she would need to stop and rest while trying to do routine household chores. (T. 286). Cardona stated that plaintiff suffered from decreased libido and had difficulty concentrating and was forgetful. Id. Cardona felt that these symptoms markedly restricted plaintiff's daily activities and the pace at which she completed tasks. (T. 286).

On June 25, 1998, Cardona reported that plaintiff continued to experience depressed mood, decreased energy, hopelessness, anxiousness, nausea, irritability, dizziness, and crying spells. (T. 283). Cardona indicated that plaintiff's thinking was clear and her judgment good; that her appearance was good and her attitude cooperative, but that motor activity was often agitated and she had frequent tremors. (T. 283-84). Cardona concluded that plaintiff's progress was cyclical and opined that her it would be very difficult for her to work even part-time due to her inability to concentrate on tasks. (T. 284).

On June 4, 2000, Cardona reported on plaintiff's condition and treatment. (T. 430-31). Cardona stated that he was seeing plaintiff twice a month and employed "cognitive behavioral, problem solving and relaxation therapy." (T. 430). Cardona stated that plaintiff's symptoms included difficulty sleeping and concentrating; irritability and anger outbursts for no apparent reason; hypervigilance and exaggerated startle response; and obsession with recurrent thoughts of the accident in 1995. Id. Cardona stated that Cartagena's tremors and crying spells, which had subsided, had re-intensified and were again occurring. Id. Cardona reported that plaintiff had difficulty sleeping and was frightened by noises and shadows at night and was fatigued during much of the day. (T. 431). Cardona indicated that plaintiff suffered from decreased energy, feelings of guilt, worthlessness, had difficulty concentrating and had memory problems. Id.

According to Cardona, on mental status examination, plaintiff presented a neat and clean appearance; had an anxious mood with frequent tremors; had a constricted affect, short term memory loss, and poor concentration. Id. Cardona stated that plaintiff had great difficulty with activities of daily living, such as household chores and shopping, and had no interests or hobbies other than church attendance. Id.

On July 8, 2000, Cardona completed a Mental Disorder Questionnaire. (T. 460-64). Cardona stated that in the past year, plaintiff had exhibited disorientation to time and place; disturbance in mood; sleep disturbance; decreased energy; difficulty concentrating or thinking; persistent disturbance of mood or affect; memory impairment; emotional ability; feelings of guilt or worthlessness; easy distractibility; generalized persistent anxiety; and blunt, flat inappropriate affect. (T. 461). Cardona reported that he provided cognitive, behavioral and behavior modification therapy and that plaintiff was cooperative with treatment and had made cognitive improvements over the past two years. (T. 462). Cardona added that the improvements included reduction of anxiety and some lifting of depression, but noted that these improvements were cyclical. (T. 463).

In his report, Cardona stated that plaintiff did not have the ability to perform the following basic mental work activities: remember locations and work-like procedures; understand and remember detailed instructions; carry out detailed instructions; maintain attention and concentration for extended periods; perform activities within a schedule; maintain regular attendance; be punctual within customary tolerances; work in coordination with or proximity to others; complete a normal workday or workweek without interruptions from psychologically-based symptoms and perform at a consistent pace without an unreasonable number of rest periods; accept instructions from and respond appropriately to criticism from supervisors; travel in unfamiliar places or use public transportation; or set realistic goals or make plans independently of others. (T. 463-64). Cardona stated that plaintiff was capable of understanding, remembering and carrying out very short and simple instructions; sustaining an ordinary routine without special supervision; making simple, work-related decisions; interacting appropriately with the general public and co-workers; asking simple questions; maintaining socially ...

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