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Zabala v. Astrue

February 11, 2010



Petitioner, whose application for Supplemental Security Income based on disability was denied by the Commissioner of Social Security based on a finding that she was not disabled, appeals from the decision of the United States District Court for the Southern District of New York (William H. Pauley III, J.) which rejected her petition to set aside the Commissioner's ruling. The court of appeals (Leval, J.) affirms, finding that the denial of benefits was based on substantial evidence. Although the administrative law judge improperly declined to consider a report by a treating psychiatrist, the report was substantially duplicative so that consideration of the report would not have affected the disability determination.

The opinion of the court was delivered by: Leval, Circuit Judge

Argued: May 26, 2009

Before: LEVAL, POOLER, and PARKER, Circuit Judges.

Petitioner Gloria Zabala appeals from an order of the United States District Court for the Southern District of New York (William H. Pauley III, J.) rejecting her petition to set aside the decision of the Commissioner of Social Security denying her claim for Supplemental Security Income ("SSI") based on disability. We affirm.


Petitioner worked as a self-employed jewelry salesperson for six or seven years until 1992. She also worked as a "marathon assistant" from October to December 1997. Beginning in April 1998, she sought treatment at the emergency room of St. Barnabas Hospital, complaining of sleeplessness, hearing voices, and nervousness. The psychiatrist who examined Petitioner reported that she was fully oriented and had an appropriate affect, but was anxious. He also reported that her insight and judgment were fair, and that no psychotic symptoms were elicited. The diagnosis was adjustment/anxiety disorder. Petitioner was referred to Fordham-Tremont Community Mental Health Center ("FTMH").

Dr. Maria Sandos of FTMH treated Petitioner from June 1998 to January 1999. At her initial examination, Sandos observed that Petitioner was fully oriented, alert, positive, and adequately groomed. Her memory, impulse control, insight, and social judgment were fair. Sandos noted that Petitioner was preoccupied with her son's arrest, and that she complained of hallucinatory voices. Sandos's diagnosis was "major depression, moderate, dysthimia."Sandos also concluded that Petitioner's Global Assessment of Functioning ("GAF") was 65.*fn1 After attending therapy sessions through 1998, Petitioner reported that she felt "somewhat better" with medication, although her anxiety and depression persisted.

In September 1998, Petitioner was examined by a consulting physician, who determined that Petitioner had no physical difficulties or limitations, although she appeared anxious. In December 1998, she was examined by a consulting psychiatrist, who determined that her mood was depressed, but her judgment was fair, she possessed emotional insight, and she had no psychotic symptoms or suicidal or homicidal ideation. He diagnosed Petitioner with "[m]ajor depression, recurrent, moderate in intensity, without psychotic features." He opined that she could manage her own funds and had a fair to limited ability to understand, carry out, and remember instructions in a work setting. Also in December 1998, a state agency physician produced a report based on Petitioner's medical record. The state physician indicated that she could lift weights up to fifty pounds and could sit, stand, or walk for periods of six hours. The state physician noted that she had deficiencies in concentration and one or two episodes of decompensation (i.e., temporary increases in symptoms) in a work-like setting. He therefore opined that Petitioner had moderate limitations in activities of daily living and social functioning, marked limitations in her ability to understand, remember, and carry out complex instructions, but no limitations in understanding, remembering, and carrying out simple instructions or making simple work-related decisions.

After a session in January 1999, at which Sandos observed that her mood was less depressed and that she had no complaints of anxiety, Petitioner did not appear for her next seven scheduled appointments and FTMH closed her case file in April 1999. She returned to FTMH at the end of May 1999, and was examined by a different psychiatrist, who diagnosed her with "major depression, recurrent, moderate, without psychotic features." Petitioner had one more session, in June 1999, at which she reported feeling better on medication, and then did not return to FTMH for approximately one year.

Petitioner's return to treatment began with an emergency room visit in May 2000, where she complained of headaches and dizziness. A psychiatric consultation resulted in a diagnosis of "depressive disorder NOS [not otherwise specified]." She went to FTMH in June 2000 and was examined by Dr. Albert Scublinsky, who continued to treat her through 2002. At her intake, Dr. Scublinsky diagnosed Petitioner with major depression with psychotic features and general anxiety disorder and determined her GAF to be 45. Eight days later, on June 20, 2000,*fn2 Scublinsky saw her again and raised his assessment of her GAF to 55. After two more sessions at FTMH within the next month, Petitioner reported that she had no delusions or hallucinations, and that the medicine she was prescribed had no side effects.

In October, November, and December 2000, Petitioner reported that she was "stressed out" from having taken custody of her daughter's children, but she appeared psychiatrically stable and indicated that her medication was helpful. In two sessions with Scublinsky, in mid-December 2000 and mid-January 2001, Petitioner reported that she suffered from sleeplessness and hearing voices. Otherwise, from February 2001 through July 2001, she appeared psychologically stable and did not complain of hearing voices.

In July 2001, at the request of Petitioner's counsel, Dr. Scublinsky completed a questionnaire and reported a diagnosis of "major depressive [disorder], severe, recurrent, [with] psychotic [features]." He further reported that her GAF was 55. He noted that her primary symptoms were depression, anxiety, and auditory hallucinations, but that she also suffered from poor memory, feelings of worthlessness, social withdrawal, and decreased energy.*fn3 In a section of the questionnaire regarding Petitioner's ability to perform work-related functions, Scublinsky wrote "unable to assess."

In June 2002, Petitioner was examined by Dr. Azariah Eshkenazi in connection with her claim for benefits. Eshkanazi diagnosed a disthymic disorder and indicated that her GAF was 60. Eshkenazi also opined that she was, "at present,... unable to be gainfully employed." Also in June 2002, Dr. Scublinsky prepared another questionnaire, reporting the same diagnosis and GAF as he did in the July ...

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