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Angela v. Commissioner of Social Security

February 14, 2011


The opinion of the court was delivered by: Andrew T. Baxter, U.S. Magistrate Judge


This matter was referred to me for report and recommendation by the Honorable Gary L. Sharpe, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(d). This case has proceeded in accordance with General Order 18.


Plaintiff "protectively filed" an application for disability insurance benefits and Supplemental Security Income ("SSI") on December 10, 2007, claiming disability since December 19, 2004. (Administrative Transcript ("T.") at 33-35; 13).*fn1

Plaintiff's application was initially denied on March 25, 2008 (T. 21-22; 13), andshe requested a hearing before an Administrative Law Judge ("ALJ") (T. 24-30; 13). The hearing, at which plaintiff testified, was conducted on June 25, 2009. (T. 314-36).

In a decision dated September 3, 2009, the ALJ found that plaintiff was not disabled. (T. 13-20). The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on February 26, 2010. (T. 6-9).


Plaintiff's medical history involves diagnoses and treatment for hydrocephalus;*fn2 chronic migraine headaches; and anxiety, depression, and various other cognitive and mental health issues. The medical evidence begins with records of the Southern New York NeuroSurgical Group, which treated plaintiff's hydrocephalus since her birth. (T. 123-24, 141-75). Between 2002 and late 2007, doctors (primarily Daniel D. Gaylon, M.D.) and a physician assistant (Joseph R. Garrehy) periodically saw plaintiff regarding chronic and severe headaches. After repeated examination, testing, and consultation, members of the neurosurgery practice consistently concluded that plaintiff's headaches were "migrainous" in nature, not the result of any problems relating to her hydrocephalus or the shunt system that was implanted at birth to treat that condition. (T. 141-152). Plaintiff was referred to a neurologist for treatment of her headaches. (T. 141, 142, 145). Although Dr. Gaylon stated, in December 2007 that he did not see any reason why the plaintiff could not engage in gainful employment, he deferred to her primary care doctor or consulting neurologist with respect to her request for an out-of-work slip.

(T. 141).

Between April 2005 through at least 2009, neurologist Taseer Minhas, M.D., periodically treated plaintiff for chronic headaches. (T. 186-89, 283-86, 299, 309-10). He tried various medications for plaintiff's headaches over the years, with limited success. (T. 186-87, 309-310). In his last report in May 2009, Dr. Minhas confirmed, as consistent with plaintiff's medical condition, her claims that she suffered from "severe" migraines three to seven times per week. (T. 299). Plaintiff was also occasionally seen, for her headaches, by other medical professionals, including emergency room personnel. (T. 121-130, 176-77, 300-308).

On January 11, 2008, Uzma Anis, M.D., saw plaintiff when she was five-months pregnant with her fourth child. Dr. Anis noted, inter alia, that plaintiff reported symptoms and a history of anxiety/panic attacks and claustrophobia, for which the doctor considered a prescription of Zoloft. (T. 176-77). Shortly thereafter, Dr. Minhas noted that plaintiff displayed significant symptoms of anxiety and depression, and cited that as a cause of her headaches. (T. 187). Between August 2008 and at least April 2009, plaintiff was treated by the Broome County Mental Health Department, primarily by Clinical Social Worker Jill Meskunas-Van Pelt, for what was ultimately diagnosed as anxiety disorder. (T. 270-282, 293-98). In April 2009, LCSW Van Pelt prepared a mental health questionnaire rating plaintiff's impairments as "marked" for the majority of the criteria relating to concentration and persistence; interaction with others; and adaption/stress. (T. 293-94).

In February 2008, plaintiff underwent an internal medicine examination, by Justine Magurno, M.D., in connection with her applications for SSI and disability insurance. Dr. Magurno diagnosed, inter alia, plaintiff's headaches and history of social anxiety disorder. The doctor found it difficult to assess the degree to which plaintiff's functioning was limited, because she was not suffering from a headache at the time of the examination, and because the doctor did not have access to the records of plaintiff's prior treatment. (T. 190-94).

Psychologist Mary Ann Moore conducted a psychiatric evaluation (T. 195-200) and an intelligence evaluation (T. 201-206) of plaintiff in February 2008. Dr. Moore diagnosed plaintiff with panic disorder, social phobia, depressive disorder, and impulse control disorder, and noted that her "psychiatric problems . . . may significantly interfere with her ability to function on a daily basis." (T. 198-99). Dr. Moore also concluded that plaintiff had "borderline intellectual functioning" (with a full-scale IQ of 74) and "cognitive problems" which could cause problems with "maintaining a regular work schedule and making appropriate work decisions . . ." and "dealing adequately with others." (T. 204-205). However, Dr. Moore opined that plaintiff could follow and understand simple directions and perform simple tasks under supervision. (T. 198, 204).

A state-agency psychologist, Dr. Edward Kamin, completed a psychiatric review of the medical evidence and a mental residual functional capacity assessment on March 25, 2008. (T. 248-62, 263-68). He opined that plaintiff's medically determinable impairments did not satisfy the diagnostic criteria associated with Listing categories 12.04 (Affective Disorders), 12.05 (Mental Retardation), 12.06 (Anxiety-Related Disorders), and 12.08 (Personality Disorders). (T. 248, 251-53, 255, 258-61). Dr. Kamin found, inter alia, that plaintiff had a marked limitation with respect to carrying out detailed instructions and moderate limitations with respect to several other criteria relating to understanding and memory, sustained concentration and persistence, social interaction, and adaption. (T. 263-64). He noted that no treating source had provided a work-related statement. (T. 265).

The court will not set forth here the details of the medical evidence, which is summarized in both Plaintiff's Brief (at 1-5, Dkt. No. 9) and the Defendant's Brief (at 2-9, Dkt. No. 12). Other relevant aspects of the medical evidence are discussed below in the course of analyzing the issues disputed by the parties.


Born in 1983, plaintiff was age 25 at the time of the hearing on June 25, 2009.

(T. 321). The plaintiff had a difficult and troubled childhood, much of which was spent in foster homes. (T. 279-80). She left school in the eighth grade and, after several unsuccessful attempts, earned her GED in 2008. (T. 280, 321). She lives with a boyfriend and four children, ages seven, six, four, and one. (T. 321).

Plaintiff is able to attend to her children, cook, do dishes, clean, do laundry, and care for herself, although she needs assistance from her boyfriend and sister when she is debilitated by migraine headaches. (T. 64-68, 324, 326). Plaintiff testified that she has problems with migraines "every day." When they are "really bad," the headaches make plaintiff dizzy, cause her vision to blur, and make her sick to her stomach, requiring her to lie down, with the lights off, for four to five hours.

(T. 323-24). Although she runs errands and keeps appointments outside the home, plaintiff claims to be anxious around others outside her home, particularly in crowds.

(T. 67-68, 272-73, 326-27).

Plaintiff had a limited work history, which included a position as a cashier and stock person at a gas station/convenience store, which was full-time for much of 2004, and part-time for a few months in 2006. (T. 42, 48-50, 280, 321-22). She stopped working because of increasing anxiety, more severe headaches, and the impact of her work on her ability to care for herself. (T. 50, 272, 322-23).


In the ALJ's September 3, 2009 decision, she acknowledged that plaintiff met the insured status requirements of the Social Security Act through December 31, 2006, and found that plaintiff had not been engaged in substantial gainful activity since December 19, 2004--the alleged onset date. (T. 15). The ALJ determined that the plaintiff's migraine headaches, borderline intellectual functioning, and anxiety disorder were "severe" impairments, but found that they did not rise to the level of any impairment listed in Appendix 1 of 20 C.F.R., Part 404, Subpart P. (T. 15-18).

The ALJ concluded that plaintiff retained the residual functional capacity to perform a full range of work at all exertional levels. The ALJ found that the plaintiff had non-exertional limitations which nonetheless left her with the ability "to understand and follow simple instructions and directions; perform simple tasks with supervision and independently; maintain attention/concentration for tasks; regularly attend to a routine and maintain a basic schedule; relate to and interact appropriately with others; and deal with work-related stress with little change from day to day."

(T. 18). The ALJ determined that plaintiff could perform her past work as a convenience store clerk/cashier, and thus, that ...

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