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Leisten v. Astrue

March 22, 2010


The opinion of the court was delivered by: Charles J. Siragusa United States District Judge



This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security ("Commissioner" or "Defendant"), which denied plaintiff Catherine Leisten's ("Plaintiff") application for supplemental security income benefits. Now before the Court is Defendant's motion [#11] for judgment on the pleadings and Plaintiff's cross-motion [#12] for judgment on the pleadings. For the reasons that follow, Plaintiff's application is granted, Defendant's application is denied, and this action is remanded to the Commissioner of Social Security for further administrative proceedings.


Plaintiff applied for supplemental security income benefits, with a protective filing date of June 22, 2005. Plaintiff claimed to be disabled due to bipolar disorder, depression, anxiety, post-traumatic stress disorder ("PTSD"), and lower-back pain. (77, 92).*fn1 On November 17, 2005, the Commissioner denied the application. (53-55). On May 21, 2008, a hearing was held before Administrative Law Judge Newton Greenberg ("ALJ"). On June 19, 2008, the ALJ issued a decision denying benefits. (15-26).*fn2

Plaintiff appealed to the Appeals Council, and submitted additional medical records, including new records reflecting medical treatment, occurring after the May 21st hearing, by Gregory Seeger, M.D. ("Seeger"), which will be discussed further below. On November 26, 2008, the Appeals Council denied Plaintiff's request for review. (4-8). The Appeals Council indicated that it considered Seeger's notes, but did not comment further on them. (5). Consequently, the Appeals Council's decision, dated November 26, 2008, is the Commissioner's final decision. See, Pollard v. Halter, 377 F.3d 183, 191 (2d Cir. 2004) ("Like the Seventh and Eighth circuits, we find that a 'final decision' by the SSA is rendered when the Appeals Council either considers the application on the merits or declines a claimant's request for review, and not simply when the ALJ issues its decision.") (citation omitted). On December 8, 2008, Plaintiff commenced the subject action.

Subsequently, the parties filed their cross-motions for judgment on the pleadings. Defendant maintains that the ALJ's decision reflects the proper application of the relevant law and is supported by substantial evidence. Plaintiff, however, maintains that the ALJ's decision is flawed in the following respects: 1) the ALJ ignored or selectively evaluated evidence; 2) the ALJ did not properly apply the treating physician rule; 3) the ALJ failed to recognize that Plaintiff's substance abuse is related to her bipolar condition; 4) Plaintiff had listed impairments; and 5) Plaintiff was denied due process at the hearing.


Plaintiff was thirty-three years of age at the time of the hearing, and had completed the eleventh grade. (365-366). Plaintiff has failed her GED exam, but is interested in taking it again. (127). Her employment history includes brief stints as a supermarket cashier, food service worker in a restaurant and movie theater, and a housekeeper in a hotel. (78). It appears that Plaintiff has held only four jobs in her lifetime, with such work limited to portions of the years 1992, 1993, 1998, 1999, and 2000. (78). During those years, Plaintiff's annual earnings never exceeded $1,990. (78, 95). Plaintiff has never worked at any job longer than three or four months. (180, 373). Plaintiff has not worked since August 2001, and she states that she became unable to work in December 2004. (Id.).


In her application for SSI benefits, Plaintiff stated that she spent her days going to group therapy and mental health therapy, walking, shopping, and visiting her six children, who are either in foster care or living with relatives. (85, 109A). Plaintiff is able to care for herself and prepare her own meals. (86). Plaintiff is also able to perform all household chores including laundry, dishes, vacuuming, and dusting. (87). While Plaintiff is capable of driving, her license is suspended. (Id.). Plaintiff has hobbies, including watching movies and playing bingo. (88). Plaintiff socializes with others, but at times she feels unable to do so because of her mood. (89). Plaintiff claims to experience pain in her back from standing too long or walking long distances. (93). Plaintiff states that her "mental health" problems cause her to have good days and bad days, and that it is difficult for to focus. (102). At the hearing before the ALJ, Plaintiff explained why she cannot work:

Sometimes I get overwhelmed. I get frustrated. I get, you know, I think I'm doing very well and then I sabotage myself because maybe I feel good one day then I don't feel good the next. I want to stay in bed so I'll stay in bed. My moods go up and down, but I'm trying to control that with the medication.... I don't know why, but then my moods I'll just lay on the couch some days. I feel like blah. I just don't feel right. (367). Plaintiff stated that she was interested in supporting herself, but that her "mental" got in the way of "feeling successful or wanting to complete something." (369). Plaintiff stated that any physical problems she had did not prevent her from working. (368).


Plaintiff's medical history was summarized in the parties' submissions and need not be repeated here in its entirety. It is sufficient for purposes of this Decision and Order to note the following facts.

On October 28, 1998, Plaintiff completed a Chemical Dependency Program at the Family Service of Rochester, for alcohol and cocaine dependency. (106, 108). The discharge summary stated that Plaintiff had completed her treatment goals and had consistently passed urinalysis testing. (106). The discharge summary recommended that Plaintiff continue mental health counseling and attend Twelve-step support group meetings. In July 2004 Plaintiff gave birth to a son. (161-167). Plaintiff reported having used cocaine three months earlier. (161). On July 6, 2004, Plaintiff entered a mental health program through the "Strong Recovery" program at Strong Memorial Hospital. (169-170). The intake diagnosis was cocaine dependence, opiate dependence, panic disorder, depression, and "hx [history of] bipolar disorder." (169). Plaintiff attended several sessions with a therapist, but then stopped coming and was terminated from the program. (170). The discharge prognosis was, "poor if she does not receive treatment." (Id.).

In June 2005, Plaintiff entered the Addiction Psychiatry Program at Strong Memorial Hospital, through which she was to receive education and psychotherapy each week. (171). Drug testing performed in July 2005 was negative. (175-177).

On September 28, 2005, Plaintiff was examined by Melvin Zax, Ph.D. ("Zax"), a non-treating consultative examiner. (180-183). Plaintiff told Zax that she had six children, two of whom lived with her, while the other four lived with relatives. (180). Plaintiff stated that her longest period of continuous employment was two months. (Id.). Plaintiff reported that she was never hospitalized for psychiatric reasons, but had been seeking outpatient treatment since 2003. (Id.). Plaintiff stated that she was currently attending group and individual counseling sessions each week. (Id.). Plaintiff reported being bipolar, anxious, and depressed, and said that she felt moody, low, sleepy, and overwhelmed. (181). Plaintiff stated that she began drinking alcohol at age 16 and using cocaine, heroin, and marijuana at age 18. Plaintiff indicated that she used drugs (cocaine and heroin) daily until 2004. (181). Plaintiff reported having been in "many different rehab programs." (181). Plaintiff further reported having been arrested twice for prostitution and drug possession. (181). Additionally, Plaintiff reported feeling close to her family, and that she socialized with friends. (182). Plaintiff stated that she was able to care for herself and her children, as well as cook, clean, shop, do laundry, and keep appointments. (182). Upon examination, Zax found that Plaintiff's thinking was coherent and her affect was appropriate. (182). Plaintiff's attention, concentration, and memory were intact, her insight and judgment were fair, and her intelligence was borderline. (182). Zax stated that Plaintiff could follow and understand simple directions. (182). Zax's diagnosis was "depressive disorder, mild." Zax opined that Plaintiff could handle her own funds "as long as she remains free of alcohol and drug use." (183). Zax concluded,

I think if the claimant feels the need for it, she should continue in her treatment and on medication. I think some encouragement should be given to her to begin thinking about supporting herself. She seems to have little or no interest in that and, for that reason, I think her prognosis is quite poor. (183).

On September 29, 2005, Plaintiff was examined by Harbinder Toor, M.D. ("Toor"), another non-treating consultative examiner. (184-187). Plaintiff reported having back pain, due to an injury from lifting at work. (184). Plaintiff stated that the pain was "off and on pain," that was worsened by walking, sitting, standing, lifting, and bending. (Id.). Plaintiff stated that she took over-the-counter pain medication as needed. Plaintiff also reported having shortness of breath, and some chest pain related to the surgical removal of her thymus gland years earlier. (Id.). Plaintiff was taking various medications, including Abilify, Seroquel, Topamax, Lamictal, Zoloft, and Omeprazole. Plaintiff stated that, prior to age 30 she was a "heavy" user of marijuana, cocaine, and heroin. (185). Plaintiff indicated that she was able to shower and bathe herself, cook, clean, do laundry, shop, socialize, go for walks, go to movies, and read. (Id.). Upon examination, Plaintiff was found to be obese, being 5' 5" tall and weighing 271 pounds. Plaintiff was in no acute distress, with normal gait, able to walk on heels and toes without difficulty, with a normal stance, and needed no help rising from her chair or getting on and off the examining table. (Id.). Plaintiff's spine was essentially normal, except for some "mild pain" in the lumbar spine with rotary movements. (186). An x-ray of the lumbosacral spine showed "moderate narrowing of the disk space at the L5-S1 level," with "mild scoliosis." (187, 188). Straight-leg raising was "slightly positive." (Id.). Plaintiff had full strength in her limbs and hands. (Id.). Toor concluded that Plaintiff had "mild limitation for walking for a long distance, sitting for a long time, standing for a long time, lifting, and bending." (187).

On October 27, 2005, K. Kriner, ("Kriner"), a non-treating, non-examining agency review physician, indicated that Plaintiff had "[n]o specific functional limitations." (192).

On November 16, 2005, Cheryl Butensky, Ph.D. ("Butensky"), a non-treating, non-examining agency review psychologist, completed a Psychiatric Review Technique form. (195-208). Butensky stated that Plaintiff had affective disorders and substance addiction disorders that were not severe. (195). Butensky indicated that Plaintiff would have only mild limitations with regard to restrictions of activities of daily living, maintaining social functioning, and maintaining concentration, persistence and pace. (205).

On November 30, 2004, treating physician Gloria Baciewicz, M.D. ("Baciewicz") completed an "initial assessment" form for the Strong Recovery program. (211-216). Plaintiff's chief complaint was that she needed help to "stay focused each day and to help her talk about her feelings." (211). Plaintiff stated that she had attempted similar treatment five separate times since 2002. Plaintiff indicated that she was attending AA meetings daily. Plaintiff stated that she had six children, two of whom were in foster care, and four of whom were living with relatives. Plaintiff also stated that her mother and maternal grandfather were alcoholics, and that alcoholism, bipolar disorder, and depression were prevalent on the maternal side of her family. Plaintiff further revealed that she was sexually abused as a child, and that one of her boyfriends had been physically abusive. Plaintiff described a long history of using alcohol and crack cocaine, with some limited use of heroin. (212). Plaintiff stated that upon completing a treatment program in August 2004, she immediately began using cocaine, and continued to do so until she was arrested and jailed in November 2004 for prostitution and drug possession. Plaintiff reported having mood swings, daily panic attacks, and "wacky dreams," and said that she had previously had auditory hallucinations. (213). Plaintiff's mood was depressed, her judgment and insight were poor, and she showed some signs of memory deficits. Baciewicz observed that Plaintiff was present in her office because of a referral by the Department of Social Services, and that Plaintiff appeared "unenthusiastic" about the prospect of treatment. Baciewicz's diagnosis was cocaine dependence with physiologic dependence, "bipolar disorder per Catherine," and possible panic disorder and depressive disorder. Baciewicz recommended that Plaintiff enter an intensive outpatient treatment program.

On November 30, 2005, Baciewicz stated that she had been Plaintiff's psychiatrist "for many years*fn3 in conjunction with [Plaintiff's] treatment at Strong Recovery," and that Plaintiff had bipolar disorder, panic disorder, and cocaine dependence. (210). As with her previous report from 2004, in referring to Plaintiff's bipolar disorder, Baciewicz desribed it as, "Bipolar disorder, per Catherine." (213). Baciewicz stated, "In my opinion she remains unable to work at this time because of her mood and anxiety problems." (210).

Between November 2004 and December 2005, Plaintiff had weekly drug screening tests that ...

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