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Thomas v. Astrue

April 6, 2010


The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.


Linda Thomas, proceeding pro se, brings this action pursuant to 42 U.S.C § 405(g), to obtain judicial review of the final decision of the Commissioner of Social Security denying her application for Supplemental Security Income ("SSI") benefits. The Commissioner has moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). Thomas has not opposed the Commissioner's motion. For the reasons set forth below, the Commissioner's motion is GRANTED.


On April 22, 2003, Thomas filed an application for SSI benefits, alleging that she was totally disabled as of May 1, 1989.*fn1 (R. 12, 25) Thomas's application was denied on initial review. (R. 26-29) She then requested a hearing before an Administrative Law Judge. (R. 30) Hearings were held on March 20, 2006, and May 17, 2006, before Administrative Law Judge Deirdre R. Horton (the "ALJ") but were adjourned to allow Thomas to secure legal representation and to allow the ALJ to gather necessary records. (R. 342-57) On December 20, 2006, the ALJ held a hearing to consider Thomas's application.

(R. 358-79) Thomas appeared with her attorney, Michael T. Sullivan. (R. 358) On February 23, 2007, the ALJ issued a decision concluding that Thomas is not disabled under Section 1614(a)(3)(A) of the Social Security Act and denying her application for SSI benefits. (R. 9-23) Thomas sought relief from the Appeals Council, but the Council denied the request for review on July 25, 2008. (R. 5-8) Thomas filed this action pursuant to 42 U.S.C § 405(g) on September 15, 2008. Thomas claims that she has been entitled to receive disability insurance benefits and/or SSI benefits since 1988 because of mental disabilities, asthma, high blood pressure, memory problems, a knee injury, gall bladder problems, and arthritis. (Cmplt. ¶ 4)


Thomas was born on July 18, 1957, in Brooklyn, New York. (R. 364) She attended school through the eleventh grade and earned a GED in 1979. (R. 107, 375) For much of her life, she has abused alcohol, and used marijuana and cocaine. (R. 376-77) Thomas lives alone but receives modest financial assistance from her boyfriend and her daughter. (R. 364-65, 375) She also receives welfare payments. (R. 375)

In applying for SSI benefits, Thomas indicated that she was able to take care of herself, prepare her meals, and do household chores. (R. 121-23) She uses public transportation and handles her own finances. (R. 123-24)

Thomas worked as a supermarket cashier from approximately April 1980 to July 1983. (R. 102, 366) She appears to have been unemployed from 1983 until 2001, when she worked for two months as a maintenance worker at a courthouse. (R. 102, 366)

Between 2003 and 2005, Thomas shampooed, styled, and braided hair in her home, earning between $35 and $60 per customer and seeing five to six customers per week. (R. 370-72, 375) Thomas testified that her earnings were minimal, but Social Security Administration's records show that she earned $9,674 in 2003 and $9,328 in 2004. (R. 95) At the December 2006 hearing, Thomas testified that she had filed tax returns showing this income but explained that she had inflated her earnings in order to boost her earned income tax credit and tax refund. (R. 373-74, 361-62)


Thomas suffers from high blood pressure, asthma and arthritis in her right hand, and has trouble sleeping. She has a "problem with crowds of people" and "problems with [her] nerves." She also has trouble getting along with others and with concentrating. Thomas hallucinates and hears voices approximately once a week, and feels anxious "every couple of days." (R. 367-69)

A. Physical Condition

Thomas has received routine medical care at Soundview Health Center*fn2 since 2000 (R. 190-251), and has been treated there for occasional respiratory problems (R. 225, 227, 230, 234-35), hypertension (R. 226-29, 237), a painful callus on her left heel (R. 236), and knee, hand, and arm pain.

In April 2000, Thomas complained of bilateral knee pain to a Soundview physician. An x-ray examination of Thomas's knees revealed "no evidence of fracture, dislocation or effusion," however. (R. 245, 247, 288) In March 2002, Thomas complained of right arm pain and stiffness, but when she returned in April 2002, she did not complain about this condition. (R. 223-24) In June 2002, Thomas returned to Soundview with complaints of right hand and arm pain. (R. 221) The physician who examined her, however, found no inflammation, and when Thomas returned to Soundview in July 2002, she did not complain of hand or arm pain. (R221)

On July 7, 2003, Dr. Peter Graham, a specialist in internal medicine, examined Thomas in connection with a referral by the Office of Disability Determinations. (R. 135) Thomas told Dr. Graham that she spends her days doing light activities and "has no difficulty dressing, bathing, toileting or grooming." (R. 135) She also described her psychiatric history and drug abuse, including twelve years of cocaine use. (R. 135-36)

Dr. Graham concluded that Thomas was "well-developed, well-nourished, appearing stated age and in no acute distress. Behavior is appropriate. Mood and affect are normal. Communication is adequate with no impairment of speech. [Thomas] walks normally. Station is normal. [Thomas] is able to dress and undress without difficulty. [Thomas] is able to get on and off the examination table without difficulty." She had a "normal range" of spinal motion, clear respiration, full range of motion in her joints, and adequate muscle strength. Dr Graham detected no abnormalities in her heart function. Thomas was "oriented and alert," and demonstrated an ability to "sit, stand, walk, lift, carry, handle objects, hear and speak." She presented with hypertension, controlled by medication, and reported a history of schizoaffective disorder, drug abuse and asthma. Dr. Graham saw her prognosis as stable. He did note that in light of her history of asthma, Thomas should avoid extreme heat and cold, humidity, and fumes/odors. (R. 136-38)

Dr. Kusum Walia issued a "Physical Residual Functional Capacity Assessment" of Thomas in 2003. (R. 166-72) Dr. Walia found that Thomas had no exertional, postural, manipulative, visual or communication limitations. She was "well developed, well nourished" and had a normal range of motion in her neck and extremities. (R. 167) Dr. Walia found her reported limitations "not to be fully credible." (R. 171)

On March 19, 2004, Thomas sought treatment at Soundview for numbness and pain in her right hand and arm. (R. 205) A March 30 radiologist's report, however, showed no abnormalities in Thomas's right hand, shoulder or elbow. (R. 264) On April 15, 2004, Thomas was examined by a physician in the Clinical Neurophysiology Laboratory at Montefiore Medical Center. (R. 260-261) At that time, Thomas complained of right hand cramping and pain, occasional numbness and tingling in her fingers, mild neck discomfort, and pain from her knee to her foot in her right leg. (R. 260) Upon examination, Thomas's motor strength was rated normal, except for slight weakness in her thumb muscle. (R. 260) The electrophysiologic study of Thomas was normal. (R. 261) On April 23, 2004, Thomas returned to Soundview with complaints of right hand pain; x-rays of her hand showed no abnormality. (R. 203)

On November 16, 2004, Dr. Sapana Shah, a specialist in internal medicine at Soundview, prepared a "Medical Source Statement" concerning Thomas's ability to perform physical work-related activities. (R. 162-65) Dr. Shah found that Thomas has no limitations in her ability to lift, carry, stand, walk, sit, push or pull and that she could occasionally climb, kneel, crawl, or stoop. (R. 162-63) Dr. Shah also noted that Thomas suffered from occasional limitations in her ability to perform various manipulative functions. (R. 164) Because of Thomas's asthma, Dr. Shah indicated that she would be limited in her ability to work in environments with dust, humidity and fumes. (R. 165)

On August 10, 2005, Thomas returned to Soundview and requested Tylenol for body pain. (R. 199) On September 12 and November 30, 2005, Thomas was seen at Soundview for complaints of low back pain and was prescribed Motrin. (R. 192, 196) On April 20, 2006, Thomas was seen at Soundview again and complained of hand and arm pain; the note from that visit indicates that her prescriptions were refilled. (R. 191).

On April 20, 2006, Dr. Shah completed a "Physician's Report of Disability Due to Physical Impairment" form. (R. 182-88) Dr. Shah noted that she had seen Thomas approximately every six months since 2004. (R. 182) Dr. Shah reported that Thomas's hypertension did not limit her activities and that her asthma was "well controlled." Although Thomas had arthritis pain in her hands and shoulder pain, Dr. Shah found that Thomas could continuously lift and carry up to five pounds and could continuously use her hands for gross manipulation during an eight-hour work day. Lifting or carrying additional weight, and use of her right hand for fine manipulation and pushing and pulling, however, would be possible only occasionally. (R. 183, 185-86) Thomas faced mild restrictions in "being around moving machinery" and exposure to "marked changes in temperature and humidity," and moderate restrictions with respect to exposure to dust, fumes, gases, and noxious odors. (R. 187)

On May 4, 2006, Thomas returned to Soundview complaining of knee and arm pain. (R. 190) The medical notes concerning this visit indicate that Thomas had normal range of motion in her right arm and was able to perform daily living activities despite her pain. (R. 190)

B. Mental Condition

On January 6, 1999, Thomas was seen by a psychiatrist at Soundview-Throgs Neck Community Mental Health Center. (R. 314-17) Thomas was diagnosed with "major depression" with "psychotic features." The psychiatrist recommended individual and group psychotherapy and anti-depressant and anti-psychotic medication. (R. 317)

On August 1, 2003, Dr. Kusum Walia issued a report finding that Thomas's mental disorder caused only a "mild" degree of limitation on her daily living activities, her ability to maintain social functioning, and her ability to maintain concentration, persistence or pace. (R. 19, 145, 155) Dr. Walia also concluded that Thomas was either "not significantly limited" or only "moderately limited" with respect to a number of criteria measuring understanding and memory, sustained concentration and persistence, and ability to adapt. (R. 159-60) Dr. Walia further found that Thomas was "not significantly limited" in a number of areas measuring social interaction. (R. 160)

In a March 20, 2006 report, social worker Leslie Lind-Delgado and Dr. Tara Lovings indicated that Lind-Delgado was seeing Thomas on a biweekly basis for verbal therapy, and Dr. Lovings was seeing Thomas on a monthly basis for medication management. Thomas had sought this treatment for "symptoms of depression, irritability, poor sleep, auditory hallucinations, [and] suicidal & homicidal ideation." (R. 181) Their report states that Thomas is taking a variety of psychiatric medications for her major depressive disorder. Lind-Delgado and Lovings administered a "Global Assessment of Functioning" ("GAF")*fn3 test to Thomas; she scored at 55, which indicates moderate symptoms or difficulty in functioning.*fn4 (R. 181) Lind-Delgado and Lovings further state that "[d]ue to Ms. Thomas's mental and emotional state she is unable to work at this time. Her condition impairs her ability to effectively function in any work setting." (Id.)

On May 3, 2006, Dr. Lovings completed a "Physician's Report For Claim Of Disability Due To Mental Impairment." (R. 173-80) Dr. Lovings concluded that Thomas suffers from bipolar disorder (R. 173), and that her symptoms include "periods of mood irritability marked by depressive symptoms," and "occasional" auditory hallucinations. (R. 174) Dr. Lovings described Thomas's mental status as "neutral mood, anxious affect . . . normal tone, thought process mostly logical but at times disorganized/distracted." (R.174) Dr. Lovings further indicated that Thomas would have difficulty travelling alone to work on a daily basis and that she was "extremely limited" in a number of categories relating to sustained concentration and persistence. (R. 176-78) However, Thomas was only "moderately limited" in her ability to understand and remember very short and simple instructions. (R. 177)

Lind-Delgado also saw Thomas on May 3, 2006. Her notes from that visit describe Thomas as "neat and clean" and "with full range [of] affect." Although Thomas reported being in a "depressed mood," she had not experienced hallucinations for two weeks and had ...

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