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Walker v. Astrue

June 11, 2010

ELLETT Y. WALKER, PLAINTIFF,
v.
MICHAEL J. ASTRUE COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Jeremiah J. Mccarthy United States Magistrate Judge

REPORT AND RECOMMENDATION

This case was referred to me by Hon. Richard J. Arcara to hear and report in accordance with 28 U.S.C. §636(b)(1)(B) [4].*fn1 Before me are the parties' cross motions for judgment on the pleading pursuant to Fed R. Civ. P. ("Rule") 12(c) [6,8]. For the following reasons, I recommend that defendant's motion be DENIED, and that plaintiff's cross-motion be GRANTED in part and DENIED in part.

PROCEDURAL BACKGROUND

Pursuant to 42 U.S.C. §405(g), plaintiff seeks review of the final decision of the Commissioner of Social Security denying her application for Supplemental Security Income ("SSI") [8]. Plaintiff filed an application for SSI on September 21, 2005, alleging a disability onset of September 21, 2005*fn2 (T13).*fn3 The claim was initially denied on February 2, 2006 (T22- 25). A hearing was conducted before ALJ William R. Pietz on February 12, 2008 (T227-54). Plaintiff was represented at the hearing by Kathleen Traina, a paralegal with the Erie County Department of Social Services' Legal Advocacy for the Disabled (T227). On March 5, 2008, ALJ Pietz issued a decision denying plaintiff's claim, finding that plaintiff had not been under a disability since September 21, 2005, and there were a significant number of jobs in the national economy that plaintiff could have performed. (T10-19). ALJ Pietz's determination became the final decision of the Commissioner on September 24, 2008, when the Appeals Council denied plaintiff's request for review (T3-5).

THE ADMINISTRATIVE RECORD

1. Medical Evidence

A. Evidence of Plaintiff's Mental Impairments Prior to Her Alleged September 21, 2005 Onset Date

In July 1998 plaintiff presented with problems of "anxiety and hyperness" upon her admission to the Erie County Holding Center ("ECHC") (T138). Plaintiff indicated a past suicide attempt, and was diagnosed with personality disorder, not otherwise specified (T138-39). Upon her admission to the Erie County Correctional Facility in December 2000, plaintiff admitted that she had been "using drugs heavily since Oct. 1999" (T141). Plaintiff admitted attempting suicide three times in the previous six months because "drugs made [her] do it," but denied any current suicidal ideation (T142). Plaintiff was again diagnosed with personality disorder, not otherwise specified. Id. Upon admission to ECHC in January and March 2002, plaintiff was diagnosed with borderline personal disorder (T144, 146).

In July 2001 plaintiff was assessed by the Buffalo General Hospital Community Mental Health Center ("CMHC") (T220). Plaintiff alleged a history of sexual abuse and was diagnosed with post-traumatic stress disorder, bipolar disorder, and polysubstance abuse (T220, 224).

On February 1, 2005, plaintiff presented to the Erie County Medical Center ("ECMC") emergency room after "being found behaving erratically and menacing in public and threatening to . . . kill her boyfriend" (T94). Plaintiff was prescribed Seroquel and Celexa, but declined treatment for her substance abuse (T95). Plaintiff was discharged with a diagnosis of polysubstance abuse, and antisocial and borderline personality disorders were ruled out (T95-96). Her Global Assessment Functioning ("GAF") was 65 upon discharge (T96).*fn4 On February 12, 2005, plaintiff was treated in the emergency room for Seroquel and alcohol overdose, and she was discharged the next day, after agreeing to out-patient substance abuse treatment (T97-98).

In April 2005 plaintiff sought psychiatric care at Buffalo General Hospital after seeking treatment for an unrelated physical ailment, and at that time "no lethality [was] expressed" (T85-86).

B. Evidence of Plaintiff's Mental Impairments After Her Alleged September 21, 2005 Onset Date

On October 30, 2005 plaintiff, with a blood alcohol content of 0.22, presented to the Comprehensive Psychiatric Emergency Program ("CPEP") at ECMC, alleging that she had been raped (T102). Plaintiff was diagnosed with adjustment disorder and schizophrenia, and was discharged the same day (T112). Thereafter, plaintiff received psychiatric care in November 2005 through Horizon Health Services (T172). She complained of hearing the voices of her dead sister and grandfather. Id. In December 2005 plaintiff was denied admission to Horizon's program for failing to attend follow-up appointments and to complete the assessment process (T178).

In January 2006 plaintiff was assessed at ECHC after being arrested for assaulting her aunt and possessing drug paraphernalia (T159). Plaintiff was diagnosed with depression and drug and alcohol abuse (T160). In June 2006 plaintiff, feeling suicidal, presented again to CPEP after an altercation with a boyfriend (T147). Plaintiff claimed that she increasingly heard voices speaking to her (T149). Plaintiff was diagnosed with adjustment disorder, bipolar disorder, and schizophrenia (T156). Substance induced psychosis was ruled out (T156).

In October 2006, plaintiff was admitted into treatment with Alcohol and Drug Dependency Services (T173). She was discharged in December 2006, after successfully completing the program (T183).

In December 2006 plaintiff was referred to CMHC for anxiety and mood swings (T189). Plaintiff attended group therapy sessions, but was discharged in March 2007 for failing to attend (T190). Upon discharge, plaintiff was diagnosed with bipolar disorder and post-traumatic stress disorder (T189).

In October 2007 plaintiff entered individual counseling for substance abuse and mental health issues at the Monsignor Carr Institute (T164). She was discharged in November 2007 after not complying with treatment. Id. Upon discharge, plaintiff was diagnosed with cocaine dependency, paranoid schizophrenia, ...


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