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Lee v. Commissioner of Social Security

September 15, 2009

JENNIFER J. LEE PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



DECISION AND ORDER

Jennifer J. Lee ("Plaintiff") brings this suit under section 205(g) of the Social Security Act ("Act"), as amended, 42 U.S.C. section 405(g), to review a final determination of the Commissioner of Social Security ("Commissioner") denying Plaintiff's application for benefits. For the reasons discussed below, the Court affirms the Commissioner's decision.

I. FACTS

A. Procedural History

On June 7, 2004, Plaintiff filed an application for Supplemental Security Income ("SSI") benefits. T 52E.*fn1 The application was denied on November 1, 2004. Id. at 22. Plaintiff requested a hearing on December 27, 2004, and appeared before the Administrative Law Judge ("ALJ") on September 9, 2005. Id. at 29, 340-56. On December 5, 2005, the ALJ issued his unfavorable decision. Id. at 10-20. On April 7, 2006, the Appeals Council denied Plaintiff's Request for Review. Id. at 6. Plaintiff then commenced the instant action seeking review of the Commissioner's determination. See Complaint (Dkt. No. 1).

B. Medical History

Plaintiff was born in 1974. Plaintiff alleges that she was raped at age fourteen by her then boyfriend and also repeatedly raped by her brother. T 156. Plaintiff reports having suicidal thoughts that required her to be hospitalized. Id. at 207. Plaintiff has a long history of drug and alcohol abuse, including using marijuana and crack cocaine. Id. at 157, 268, 278. This history dates back to age four, when she was provided her first drink by her father and age eight, when she first got intoxicated after "raiding" the liquor cabinet of a neighbor. Id. at 156. Plaintiff has three DWI's, as a result of which she has spent time in jail and lost custody of her three children. Id. at 278. Plaintiff reported having attempted numerous rehabilitation programs.

Plaintiff earned a full scale IQ of 74 on the Wechsler Adult Intelligence Scale III Edition, placing her in the borderline range. T 208-09, 279. In February 2003, Plaintiff was diagnosed as suffering from schizoaffective disorder bipolar type, alcohol dependence in early partial remission, cannabis dependence in early partial remission, cocaine dependence in early partial remission, nicotine dependence, personality disorder not otherwise specified with borderline dependent anti-social traits, and an inability to sustain sobriety and be drug free. Id. at 157. In March 2003, Plaintiff was again found to have borderline intelligence, to have "schizoaffective disorder depressed type by history," and "alcohol and cannabis dependence in partial remission by history." Id. at 225-234. She was determined to have mild limitations in her activities of daily living and maintaining social functioning. Id. at 235. She was found to have moderate limitations in maintaining concentration, persistence, or pace; maintaining attention and concentration for extended periods; working in coordination with or proximity to others without being distracted by them; completing a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; the ability to accept instructions and respond appropriately to criticism from supervisors; the ability to get along with co-workers or peers without distracting them or exhibiting behavioral extremes; and setting realistic goals or making plans independently of others. Id. at 235-40. Plaintiff has reported having auditory hallucinations, some of which are associated with drugs, others of which are not. Id. at 157. She reported to a physician that "on some occasions she hears the devil telling her to kill herself and she hears God telling her not to kill herself." Id.

In April 2004, Plaintiff was brought to a hospital by police for an apparent suicide attempt with an overdose of Tylenol, cocaine and marijuana. T 244. Plaintiff was discharged from the hospital to a psychiatric facility. Id. In July 2004, Plaintiff was brought to the hospital after being found by a New York State Trooper walking barefoot along the road. Id. at 268. Plaintiff apparently told the Trooper that she was heading south for the winter. Id. Plaintiff was discharged in August 2004. Id. Other times Plaintiff has reported to the emergency room complaining of pain and complaining that she is bleeding to death and dying.

C. Hearing Before the ALJ

On September 9, 2005, Plaintiff testified before the ALJ regarding the nature, severity, and impact of her conditions. T 340-56. She testified that she had been pregnant for six months and had not used any drugs during that time. Id. at 346. She also testified that she had used alcohol only once (as part of a Thanksgiving meal) in the previous two years. Id. She testified that, prior to becoming pregnant, she used "a lot" of crack cocaine and also used marijuana. Id. Plaintiff stated that she continued to suffer from memory problems and hallucinations. Id. at 351. Plaintiff further testified to continued bouts of paranoia that would cause her to not enter a store or be around other people because she felt they were talking about her and that people were "coming" for her. Id. at 353-354. Plaintiff stated that she suffered from depression to the effect that she would not get out of bed and would slice her arm with a knife. Id. at 354-355. Plaintiff also described bouts of intense happiness, but noted that she "crashes" back down and cannot stop crying. Id. at 355.

Plaintiff also testified that she is able to wake herself in the morning, make coffee, do laundry and go for a walk. T 345, 348. She is able to clean her trailer, cook her own meals, visit with a friend and neighbors, and visit with her children and parents. Id. 348-49.

The ALJ issued a decision concluding that: (1) Plaintiff had not engaged in substantial gainful activity since June 7, 2004, the filing date of her last SSI application; (2) her polysubstance abuse, IQ in the 70s, and depressive disorder are "severe"; (3) Plaintiff's medically determinable impairments do not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4; (4) Plaintiff's allegations concerning her limitations were partially credible; (5) Plaintiff has no significant ability to maintain attention and concentration, regularly attend to a routine and maintain a schedule, make appropriate decisions, relate to and interact appropriately with others and deal with work stress absent polysubstance abuse; (6) Plaintiff does not have severe physical ailments; (7) Plaintiff is a "younger individual" pursuant to 20 C.F.R. § 416.963; (8) she has a high school equivalent education; (9) she has the residual functional capacity to perform a significant range of heavy work; (10) Plaintiff has no past relevant work; (11) Plaintiff "has additional restrictions due to polysubstance abuse that limit her ability to perform the mental demands of work at all levels of exertion. . . [that] would preclude [her] . . . from being able to satisfy the production, quality and attendance standards of competitive employment. . . . [and thus Plaintiff] would be disabled."; (12) Plaintiff's "alcohol and drug use are contributing factors material to the determination of disability"; and (13) Plaintiff is not eligible for SSI benefits. T 19-20.

II. STANDARD OF REVIEW

The court's review of the Commissioner's determination is limited to two inquiries. See42 U.S.C. § 405(g). First, the court must determine whether the Commissioner applied the correct legal standard. SeeTejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998); Cruz v. Sullivan, 912 F.2d 8, 9 (2d Cir. 1990); Shane v. Chater, No. 96-CV-66, 1997 WL 426203, at *4 (N.D.N.Y July 16, 1997) (Pooler, J.) (citing Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987)). Second, the court must determine whether the Commissioner's findings are supported by substantial evidence within the administrative record. SeeTejada, 167 F.3d at 773; Balsamo, 142 F.3d at 79; Cruz, 912 F.2d at 9; Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982). The Commissioner's finding will be deemed conclusive if supported by substantial evidence. See42 U.S.C. § 405(g); seealso Perez, 77 F.3d at 46; Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). In the context of Social Security cases, substantial evidence consists of "'more than a mere scintilla'" and is measured by "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 ...


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