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Marrero v. Astrue

September 27, 2010


The opinion of the court was delivered by: Sidney H. Stein, U.S. District Judge.


Pro se plaintiff Nancy Marrero brings this action pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to challenge a final determination of the Commissioner of Social Security denying Marrero Supplementary Security Income. The Commissioner has moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). Because the Commissioner's determination was free of legal error and supported by substantial evidence, that motion is granted.


A. Procedural History

On June 14, 2006, Nancy Marrero ("Marrero") applied for Supplemental Security Income ("SSI") alleging that she is disabled. (R. at 37.)*fn1 During her intake interview with the Social Security Administration ("SSA"), Marrero stated that she is limited in her ability to work because she suffers from depression, anxiety, and pain. (R. at 65.) On January 10, 2007, the SSA denied Marrero's application for SSI because Marrero's condition "is not severe enough to keep [her] from working." (R. at 41.) The following month, Marrero requested an administrative hearing. (R. at 42.) Administrative Law Judge Kenneth G. Levin (the "ALJ") conducted that hearing on July 31, 2007 to determine if Marrero were entitled to SSI payments. (R. at 409-41.) During the hearing, Betty Heaton, a paralegal with Manhattan Legal Services, represented Marrero. (R. at 21, 36.) Approximately one month later, the ALJ determined that Marrero was not disabled and was not eligible for SSI. (R. at 26.)

The decision of the ALJ became the final decision of the Commissioner when, on March 17, 2009, the Appeals Council denied Marrero's request for review. (R. at 3-6.) Two months later, Marrero commenced this action for judicial review of the Commissioner's decision; she claims that the decision was "erroneous, not supported by substantial evidence on the record, and/or contrary to the law." (Compl. ¶ 9.)

B. Factual Background

1. Non-Medical History

Marrero was born in the Dominican Republic in 1969 and immigrated to the United States in 1990. (R. at 415.) She is currently a legal resident. (Id.) Marrero has an eighth grade education and is literate in Spanish, but she does not speak or understand English. (R. at 64-65, 69.) Marrero lives in an apartment with her ten-year-old daughter and sixteen-year-old son. (R. at 74, 423-24.)

a. Plaintiff's Testimony

During the July 31, 2007 administrative hearing, Marrero testified that she stopped working in 2006 because she "was depressed." (R. at 416.) She elaborated that her depression made her "feel very sad" and made her "body hurt[] a lot." (R. at 420.) Marrero testified that when she feels depressed she lies down and stays "lying down all the time." (Id.) In addition, Marrero testified that she gets "very anxious" and has trouble sleeping because she feels "restless." (R. at 420-21.) To address her difficulties sleeping, Marrero was prescribed Ambien,

(R. at 421), but Ambien affects her ability to concentrate the next day: "I could do what I have to do at home, but my mind doesn't concentrate, I can't learn anything," (R. at 422).

During questioning by Heaton,the paralegal representing her, Marrero noted that her "back pain" also makes her lie down all day. (R. at 416.) Even though Marrero said, "I don't have any physical problems," after further questioning by Heaton, Marrero testified that she felt pain in "[b]oth my shoulders," and that her doctors had sent her to "physical therapy." (R. at 419.) Although Marrero's pain and depression require her to lay down "all the time," (R. at 420), Marrero also testified that she attends church sometimes, she uses the subway, she stretches as exercise, she visits with her friend or her sister, and she performs the household chores, including the cooking, cleaning, and shopping, (R. at 424-26).

Before Marrero stopped working in 2006, she performed a variety of jobs. (R. at 416-18.) When she first arrived in the United States, Marrero worked in a factory for four months.

(R. at 418.) In 2002 or 2003, she worked as a catalogue saleswoman, selling "pictures, candles, stuff, [and] decorations for houses" to friends and family. (R. at 417-18.) Most recently, in 2005, Marrero worked as a "home attendant" for six months, (R. at 417), and in 2006, she worked as a babysitter for a "short while," (R. at 16).

b. Vocational Expert's Testimony

Dr. Steven Feinstein, a licensed psychologist and "[v]ocational [r]ehabilitation [c]ounselor," (R. at 357-58), testified as a vocational expert during the hearing, (R. at 436). The ALJ asked Dr. Feinstein to "identify jobs at the sedentary and lift levels" that a hypothetical individual could perform, if that individual is Marrero's "age," has Marrero's "education and prior work experience," and is "limited to jobs that are simple, routine and low in stress and require only low levels of concentration." (Id.) Dr. Feinstein stated that such an individual could work as a sewing machine operator (21,900 jobs available locally, 233,000 available nationally), a light-level assembler (29,000 jobs available locally, 1,242,000 jobs available nationally), a sedentary assembler (7,500 jobs available locally and 240,000 jobs available nationally), a light-level packager (4,500 jobs available locally, 140,000 jobs available nationally), or a sedentary packager (8,500 jobs available locally and 210,000 jobs available nationally). (Id.) Dr. Feinstein also clarified, in response to the ALJ's questioning, that these jobs would not require "significant overhead reaching." (Id.)

2. Mental Health

a. Treating Sources

Beginning in 2000, Marrero received "treatment for depression" at Metropolitan Hospital. (R. at 229.) She "had psychiatric consultations once a month," and was prescribed Celexa and Ambien. (Id.) In late 2005, Marrero stopped taking her medication because "she felt that she needed to talk more than anything else." (Id.) Marrero requested an interview with Metropolitan Center for Mental Health ("MCMH"), (id.), and on May 3, 2006, Marrero began individual therapy with Ixora Salazar, a "social worker therapist" at MCMH, (R. at 23, 250, 393). Marrero met with Salazar at least once a month and often multiple times each month, from May 2006 to May 2007. (R. at 250-67, 270, 273, 275, 280, 283-85, 291-95.) In therapy sessions, Salazar noted that Marrero suffered from depression, anxiety, and "sleep disturbances."

(R. at 250, 259, 265, 282.) During this period of therapy, between April 2006 and April 2007, nurse practitioner Carol Deutsch prescribed Marrero a variety of medications, including Celexa, Remeron, Klonopin, Prozac, Seroquel, and Lexapro. (R. at 249, 256, 269, 272, 279, 282, 287, 290, 297.)

On May 5, 2006, two days after she began therapy with Salazar, Marrero checked into the emergency room, stating that she felt "depressed" and "suicidal." (R. at 195.) Marrero was treated and released that same day. (R. at 194.) On August 15, 2006, Marrero again went to the emergency room. (R. at 199-204.) Marrero stated that she felt "very nervous" and that she had been unable to sleep for three weeks. (R. at 199.) Marrero met with a psychiatrist and was again discharged the same day. (R. at 205.) Although Salazar noted that Marrero felt better in certain therapy appointments, (R. 252, 257, 270, 285, 291), throughout therapy, Salazar noted that Marrero's depression, nervousness, and "sleep disturbances" persisted, (R. at 254, 259, 261, 273, 275, 280, 283, 295).

On May 30, 2007, Dr. Michael Cohen, a psychiatrist at MCMH, signed a Psychiatric Report and an "Assessment of Functional Limitations Resulting From a Mental/Intellectual Impairment" ("Limitations Form") to aid the SSA's analysis of Marrero's eligibility for SSI.*fn2

(R. at 382-95.) The Psychiatric Report concluded that Marrero has a "history of severe depression," that she has "severe memory and concentration problems," that her psychiatric condition would "exacerbate [her] experience of pain," and that her "general functioning is severely affected by her emotional condition." (R. at 382-88.) Moreover, the Psychiatric Report concluded that Marrero was extremely limited in her ability to "concentrate" and to "complete tasks in a timely manner," (R. at 385), and that Marrero showed a "marked" limitation in her ability to remember instructions, to respond to work pressures, or to complete simple tasks, (R. at 387). According to the Psychiatric Report, Marrero's condition had persisted and could be expected to persist for at least twelve months. (R. at 384.)

The Limitations Form informs the SSA about "the [claimant's] ability to do activities on a daily and sustained basis." (R. at 389.) Similar to the Psychiatric Report, the Limitations Form concluded that Marrero's emotional condition "severely affected" her general functioning and cognitive capacities. (R. at 389, 390.) The Limitations Form also noted that Marrero exhibited marked impairments in her social functioning and in her ability to concentrate. (Id.) According to the Limitations Form, Marrero "exhibited or would be expected to exhibit either continuous or intermittent difficulty" in several abilities, including her ...

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