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Terbush-Fisher v. Astrue

September 24, 2010

CHERYL TERBUSH-FISHER, PLAINTIFF,
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge

MEMORANDUM-DECISION AND ORDER

Plaintiff Cheryl Terbush-Fisher ("Terbush-Fisher") brings this action pursuant to 42 U.S.C. § 405(g) seeking review of a decision by the Commissioner of Social Security ("Commissioner") denying her application for benefits under the Social Security Act. Terbush-Fisher moves for a finding of disability and the Commissioner cross-moves for a judgment on the pleadings. Docket Nos. 10, 16. For the reasons which follow, it is recommended that the Commissioner's decision be affirmed.

I. Procedural History

On August 1, 2006, Terbush-Fisher filed an application for disability insurance benefits pursuant to the Social Security Act, 42 U.S.C. § 401 et seq. claiming an alleged onset date of January 1, 2005*fn1 with a date of last insured on June 30, 2006. T. 47-52, 92, 355.*fn2 That application was denied on December 8, 2006. T. 35-38. Terbush-Fisher requested a hearing before an administrative law judge ("ALJ") and a hearing was held on June 5, 2008. T. 29; 352-72. In a decision dated June 26, 2008, the ALJ held that Terbush-Fisher was not entitled to disability benefits. T. 10-21. On November 5, 2008, Terbush-Fisher filed a timely request for review with the Appeals Council. T. 8. On February 17, 2009, the Appeals Council denied Terbush-Fisher's request, thus making the ALJ's findings the final decision of the Commissioner. T. 2-7. This action followed.

II. Contentions

Terbush-Fisher contends that the ALJ erred in (1) failing properly to consider the opinions of her treating physician, (2) failing to re-contact her treating physician to complete Terbush-Fisher's medical history, (3) finding that Terbush-Fisher was not credible concerning her statements of disability, (4) concluding that Terbush-Fisher retained sufficient residual functional capacity (RFC) to perform work, and (5) using the medical-vocational guidelines as a framework.

III. Facts

Terbush-Fisher is currently fifty-three years old and completed high school and one year of college for a program in office management. T. 90, 355, 357. TerbushFisher's previous work experience included being an administrative assistant and financial manager for the military; a secretary and office manager for a church; and telemarketing. T. 73-78, 85-86, 358-59. Terbush-Fisher alleges that she became disabled on January 1, 2005 due to anxiety, obesity*fn3, and musculoskeletal impairments.

T. 84.

IV. Standard of Review

A. Disability Criteria

"Every individual who is under a disability shall be entitled to a disability... benefit...." 42 U.S.C. § 423(a)(1) (2004). Disability is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment... which has lasted or can be expected to last for a continuous period of not less than 12 months." Id. § 423(d)(1)(A). A medically determinable impairment is an affliction that is so severe that it renders an individual unable to continue with his or her previous work or any other employment that may be available to him or her based upon age, education, and work experience. Id. § 423(d)(2)(A). Such an impairment must be supported by "medically acceptable clinical and laboratory diagnostic techniques." Id. § 423(d)(3). Additionally, the severity of the impairment is "based [upon] objective medical facts, diagnoses or medical opinions inferable from [the] facts, subjective complaints of pain or disability, and educational background, age, and work experience." Ventura v. Barnhart, No. -4 Civ. 9018(NRB), 2006 WL 399458, at *3 (S.D.N.Y. Feb. 21, 2006) (citing Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983)).

The Second Circuit employs a five-step analysis, based upon 20 C.F.R. § 404.1520, to determine whether an individual is entitled to disability benefits:

First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he [or she] is not, the [Commissioner] next considers whether the claimant has a 'severe impairment' which significantly limits his [or her] physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him [or her] disabled without considering vocational factors such as age, education, and work experience; the [Commissioner] presumes that a claimant who is afflicted with a 'listed' impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he [or she] has the residual functional capacity to perform his [or her] past work. Finally, if the claimant is unable to perform his [or her] past work, the [Commissioner] then determines whether there is other work which the claimant could perform.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). The plaintiff bears the initial burden of proof to establish each of the first four steps. DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1998) (citing Berry, 675 F.2d at 467). If the inquiry progresses to the fifth step, the burden shifts to the Commissioner to prove that the plaintiff is still able to engage in gainful employment somewhere. Id. at 1180 (citing Berry, 675 F.2d at 467).

B. Scope of Review

In reviewing a final decision of the Commissioner, a court must determine whether the correct legal standards were applied and whether substantial evidence supports the decision. Berry, 675 F.2d at 467. Substantial evidence is "more than a mere scintilla," meaning that in the record one can find "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citations omitted)).

"In addition, an ALJ must set forth the crucial factors justifying his findings with sufficient specificity to allow a court to determine whether substantial evidence supports the decision." Barringer v. Comm'r of Soc. Sec., 358 F. Supp. 2d 67, 72 (N.D.N.Y. 2005) (citing Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)). However, a court cannot substitute its interpretation of the administrative record for that of the Commissioner if the record contains substantial support for the ALJ's decision. Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998). If the Commissioner's finding is supported by substantial evidence, it is conclusive. 42 USC § 405(g) (2006); Halloran, 362 F.3d at 31.

V. Discussion

A. Medical Evidence

1. Work History

Terbush-Fisher has not engaged in any substantial gainful activity since the onset of disability on January 1, 2005. T. 15.

2. Anxiety Treatment Prior to July 31, 2006

The first accounts of Terbush-Fisher's anxiety occurred during her admission to St. Clare's Hospital in October 2002. T. 258-60. While Terbush-Fisher arrived at the emergency room ("ER") for weakness and gastrointestinal issues, she reported a history of panic attacks since 1994. T. 258.*fn4 The hospital staff concluded that Terbush-Fisher suffered from, inter alia, uncontrolled anxiety, and began her on prescription medication for her symptoms. T. 260. Terbush-Fisher's anxiety medication was then changed at her request, and she was discharged. T. 256-57.

In the Fall of 2002, Terbush-Fisher began receiving treatment from a primary care provider, Baptist Medical Care ("Baptist"). On October 28, 2002, Terbush-Fisher reported that she felt less tired and anxious recently, though she had experienced a panic episode earlier in the month for which she was taken to the ER. T. 311. On November 11, 2002, Terbush-Fisher was diagnosed with anxiety. T. 306. On December 12, 2002, Terbush-Fisher requested a refill and reduction in dosage of her anti-anxiety medication. T. 304.

On December 12, 2002, Terbush-Fisher participated in a counseling intake form with Samaritan Counseling ("Samaritan"). T. 192. Terbush-Fisher subjectively reported feeling sadness and anxiousness, specifically detailing the areas of concern in her life as her marriage, anxiety level, mood, and amount of sleep. T. 192. On December 17, 2002, Terbush-Fisher received counseling over the phone from Samaritan. T. 187.*fn5

During the session, Terbush-Fisher revealed feeling that she was unsupported by her husband and grieving the recent death of her mother. Id. The next week, Terbush-Fisher attended another session and reported feeling better and that her husband was being more supportive. Id.

On December 31, 2002, Samaritan completed an assessment form whereby Terbush-Fisher was noted to have a history of chronic fatigue, grief, mixed anxiety, and depression since that previous summer, which had been exacerbated by her mother's death in August. T. 190, 277. Her psychiatric history included limited outpatient counseling several years prior, and she reported being out of work due to her Epstein Barr Virus since 2002. T. 190, 277. The assessor commented that Terbush-Fisher was well-groomed, guarded, agitated, and anxious. Id. Terbush-Fisher still possessed an intact thought process and was not hallucinating or delusional. Id. While suicidal ideation and previous suicidal behaviors were present, there were no suicidal or homicidal plans or intent present and no perceived impairments by Terbush-Fisher. T. 184, 278. Terbush-Fisher was fully oriented during the assessment and her memory, orientation, cognitive functions, and judgment were all intact; buther insight was impaired. Id. Ultimately, Samaritan concluded that Terbush-Fisher presented with mixed anxiety and a depressed mood. Id.

On January 6, 2003, Terbush-Fisher cancelled her counseling appointment. T. 187. On January 13, 2003, Terbush-Fisher had a counseling session by telephone, reporting that she was feeling better, though still tired, and was angry and frustrated with her primary care physician for not "supporting her in her weakness and in not filling out her disability forms." Id. Terbush-Fisher's session on January 27 was rescheduled. Id. In sessions on January 30, February 26, and March 5 Terbush-Fisher was generally feeling better but still felt unbalanced and depressed. Id.

On March 17, 2003, Terbush-Fisher participated in another counseling session and reported feeling ill from her virus and upset at her long marriage of discomfort and conflict. T. 187. The following week Terbush-Fisher again requested a refill of her anti-anxiety medication. T. 303. On March 26, Terbush-Fisher participated in another telephone session and was described as "continu[ing] to present with moderate anxiety and depressed mood [though] denies suicidality [and remains fully] oriented...." T. 187.

On April 4 and 10, 2003, Terbush-Fisher did not answer her phone when Samaritan attempted to reach her. T. 187-88. However, her sessions on April 17 and 29 and May 8 resulted in notes concluding that Terbush-Fisher had "some reduction in her depression and anxiety [as she r]eport[ed] feeling secure in her new church family and better about her relationship with her husband." T. 188. Terbush-Fisher requested another refill of her prescription on May 9. T. 302. A few days later she had an appointment with Baptist staff requesting a psychiatric evaluation but stating that she still felt "reasonably OK." T. 301.

On June 11, 2003, Terbush-Fisher was "processing her anxiety and depression and h[istory] of not being happy for ten years...." T. 188. On June 23, Terbush-Fisher reported that she had a "reduced depressed mood [and] moderate anxiety...." Id. It was suggested that Terbush-Fisher see a psychiatrist for a medication evaluation for her ongoing anxiety issues. Id. In July, September, and October of 2003, Terbush-Fisher continued to refill her anti-anxiety prescriptions. T. 299-300. Due to her husband's illness, Terbush-Fisher missed appointments in August and September, but returned on September 8, "present[ing] with moderate mixed anxiety and depressed mood...." and attempting to deal with her husband's illness and an unwelcome house guest. T. 188.

On December 31, 2003, Terbush-Fisher was terminated from Samaritan's care. T. 185, 276. At that time, her Epstein Barr virus was in remission. Id. Her treatment goals included reducing her agoraphobic and depressive symptoms. Id. Treatment was terminated at Terbush-Fisher's request as she felt that she had reached as many goals as she presently could under Samaritan's care, while her therapist disagreed and recommended ...


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