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Maria Belen v. Michael J. Astrue

July 12, 2011


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


Plaintiff Maria Belen brings this action pursuant to 42 U.S.C § 405(g), seeking to overturn the final decision of the Commissioner of Social Security denying her application for Supplemental Security Income ("SSI") benefits. Belen and the Commissioner have both moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c).

For the reasons set forth below, both motions will be denied, and this case will be remanded for further proceedings.


On August 27, 2003, Belen filed an application for SSI benefits, alleging that she had become disabled as of October 1, 2002. (R. 118-20) Belen's application was denied on initial review. (R. 48-52) She then requested a hearing before an Administrative Law Judge ("ALJ"). (R. 56) That hearing was conducted on October 20, 2005, and February 22, 2006. Belen appeared pro se. (R. 509-15, 516-33) On May 26, 2006, ALJ Valerie A. Bawolek issued a decision concluding that Belen was not disabled within the meaning of the Social Security Act, and denying her application for SSI benefits. (R. 39-47) Belen then retained counsel and requested review of the hearing decision by the Appeals Council. (R. 108, 111-13) On November 16, 2006, the Appeals Council vacated ALJ Bawolek's decision and remanded Belen's case for further proceedings. (R. 108-09, 114-17)

On June 11, 2007, the remand hearing was held before ALJ Kenneth Scheer. (R. 469-508) Belen appeared with her attorney, Ellen Schwartz. (R. 469) On October 15, 2007, ALJ Scheer issued a decision concluding that Belen was not disabled within the meaning of the Social Security Act, and denying her application for SSI benefits. (R. 9-18) Belen again sought relief from the Appeals Council, but the Council denied her request for review on October 9, 2008. (R. 3-6, 464-67)

Belen filed this action on November 26, 2008. Belen claims that she is disabled as a result of depression, bipolar disorder, chronic lower back pain, and hypothyroidism. (Cmplt. ¶ 4)


Belen was born on February 21, 1969, in the Bronx, New York. (R. 118, 121, 475) She attended school through the ninth grade (R. 48, 137, 144, 475), and can read and write English. (R. 140) As of June 2007, she lived at home with her three children, ages seventeen, fourteen, and thirteen. (R. 158, 474)

Belen takes care of her children and helps them with their homework. (R. 159, 478) She also takes care of herself, prepares her own meals, and does household chores. (R. 160-61) Belen also uses public transportation independently and shops for food and clothing once a month. (R. 161-62)

Belen was a self-employed babysitter from 1997 to 2000, and also appears to have worked as a cashier from January 1997 to October 2002. (R. 473, 141) In September 2001, Belen received training to become a home health care aide (R. 137), and she worked in that capacity during October 2001. (R. 150) During 2002, she worked intermittently as a data entry clerk. (R. 150, 152)


Belen suffers from chronic lower back pain, hypothyroidism, and depression, in addition to having trouble sleeping. She suffers from anxiety problems and panic attacks and estimates that she experiences depressive symptoms three times a week. (R. 480-81) Belen claims that she "cannot concentrate," "cannot do [her] daily activities without feeling very anxious," and has problems paying attention when people use "big words that [she doesn't] understand." (R. 140, 164)

A.Mental Health Treatment and Evaluation

Belen has no history of psychiatric hospitalizations (R. 16), but she has received out-patient treatment at several facilities. Dr. Julio Quintanilla of the Urban Health Plan, Inc. saw Belen on March 1, 2003. Belen told Dr. Quintanilla that she had been feeling depressed for five months. (R. 344) Belen was assessed as having a depressive disorder, and was given a trial of Elavil and a psychiatric referral. (Id.)

Belen received outpatient psychiatric services at the Bronx-Lebanon Hospital Center ( "Bronx-Lebanon") during May and June 2003. (R. 183-93) Belen complained of anxiety, a depressed mood, and sleep disturbance, and reported stress related to her husband's incarceration.*fn2 (R. 191, 193) Psychiatrist Kristen Anderson prescribed Hydroxyzine and Zyprexa to help her sleep, and Paxil for her depression. (R. 133, 136)

On June 23, 2003, Jack Ellenberg, a Bronx-Lebanon psychiatrist, prescribed Paxil, Zyprexa, and Vistaril for Belen's psychiatric symptoms, and she was put on a treatment plan consisting of bi-weekly medication management and bi-weekly group and individual therapy. (R. 186-87) Because of a change in her insurance, Belen then began seeking treatment at South Bronx Mental Health Council, Inc. ("South Bronx Mental"). (R. 183)

On June 27, 2003, a South Bronx Mental psychiatrist diagnosed Belen as having a "[d]epressive disorder" and recommended a clinical rehabilitation plan of one to six months duration. (R. 235) A South Bronx Mental therapist then evaluated Belen on August 1, 2003.

(R. 204-08) Belen complained that she was unable to eat or sleep and reported that she was constantly crying. (R. 204) She also claimed that her depression was exacerbated by concerns related to her husband's criminal activity and fears that she would lose her apartment. (Id.) The therapist opined that Belen had "major depression" and would benefit from psychotherapy and medication. (R. 205) In conducting a DSM-IV multiaxial assessment,*fn3 the therapist listed major depression, single episode for Axis I; husband's incarceration and pending loss of apartment for Axis IV; and a GAF score of 60 for Axis V.*fn4 (Id.)

On August 27, 2003, Belen filed a claim for SSI disability benefits. (R. 140-49) Belen listed her medications as Hydroxyzine -- "to calm me down" -- Paxil -- "for the control of my depression" -- and Zyprexa -- "to help me sleep." (R. 143-44)

Shortly thereafter, Belen began participating in South Bronx Mental's Wellness Program. (See R. 203, 207) As part of this program, she was periodically evaluated by Dr. Norland Berk, an attending psychiatrist at South Bronx Mental. (R. 198-202, 233-34) On October 3, 2003, Dr. Berk described Belen as well-groomed, cooperative, and alert with appropriate affect and no abnormalities in thought process. (R. 198-200) Dr. Berk classified Belen's disorder as "bipolar disorder, hypomanic," noted her husband's incarceration and potential loss of residence on Axis IV, and gave her a GAF score of 50 on Axis V.*fn5 (R. 201)

On October 29, 2003, Dr. Carlos Gieseken issued a Mental Residual Functional Capacity Assessment concerning Belen. (R. 210-211A) Dr. Gieseken noted that Belen complained of depression and was taking Paxil, Depakote, and Zyprexa. (R. 210A) He reported that Belen "has 3 children whom she cares for independently. She is able to shop and take care of household chores. Able to travel independently and use public transportation. Concentration and attention somewhat impaired. Memory, judgment [sic] intact." (Id.) Dr. Gieseken also believed that Belen's statements concerning her impairments were "partially credible but not to the extent alleged." (R. 211) He further opined that she could perform "simple task work." (Id.)

On February 17, 2004, Dr. Berk completed a Condition Status Report concerning Belen. (R. 232) Dr. Berk diagnosed Belen with "non-optimized" depression and mixed bipolar disorder, and concluded that she was temporarily impaired for nine months. (Id.)

On February 18, 2004, Belen filed an SSA Disability Report Appeal. (R. 167-72) Belen listed her psychiatric medications at that time as Depakote, Geodon, Paxil, Abilify, and Seroquel. (R. 169, 174, 178) Walk-in clinic evaluation forms indicate that Belen's prescriptions for Paxil, Depakote, and Geodon were refilled in September 2004. (R. 332)

It is not clear from the record what psychiatric treatment Belen received between September 2004 and May 2006.

On May 16, 2006, Beatrice Bradshaw of Federation Employment and Guidance Service, Inc. ("F.E.G.S."), a social service organization funded by New York City's Human Resources Administration, met with Belen and prepared a comprehensive service plan and biopsychosocial summary concerning Belen. Belen reported that she had last seen a psychiatrist in August 2005 and that she was taking no psychiatric medications.*fn6 (R. 244, 252) She reported insomnia, poor energy level, and feeling depressed, but no suicidal ideation or homicidal thoughts. The service plan indicates that Belen requires three months of outpatient mental health care treatment before a residual functional capacity or "work determination" can be made.*fn7 (R. 243-44) F.E.G.S. referred Belen to Dr. Mercedes Brito for psychiatric examination. (Id.)

On June 1, 2006, Dr. Brito conducted an initial psychiatric evaluation of Belen, and noted that she was cooperative, attentive, and well-oriented, with a full and appropriate affect. (R. 363-68) Dr. Brito found no thought or perceptual disorders. On Belen's DSM assessment, Dr. Brito listed a history of bipolar disorder for Axis I, listed hypothyroidism for Axis II, noted that Belen's husband was in jail on Axis IV, and assessed a GAF score of 60 for the current and previous years on Axis V. (R. 368) Dr. Brito prescribed Depakote and recommended psychotherapy. (Id.)

After this initial evaluation, Belen attended monthly psychotherapy sessions with Luz E. Vargas, a social worker, in June, July, and August 2006. (R. 350-62) Belen told Vargas that she was "very depressed" because her husband had been charged with murder and was serving a sentence of life imprisonment without parole. (R. 350, 359) On July 25, 2006, Vargas completed a psychosocial assessment of Belen, reporting that she was well-groomed, fully oriented, and exhibited an appropriate affect. (R. 354-60) Vargas opined that Belen's low self-esteem, unemployment, and husband's incarceration contributed to her depression. (R. 357) On Belen's DSM assessment, Vargas listed dysthymia*fn8 under Axis I, dependent personality disorder under Axis II, hypothyroidism under Axis III, noted "husband in jail" on Axis IV, and calculated a GAF score of 60 on Axis V. (R. 360)

On August 23, 2006, Vargas and psychologist Arthur Berger of Urban Health Plan completed a Psychiatric/Psychological Impairment Questionnaire concerning Belen. (R. 261-68) Using the DSM scale, they assessed dysthymia and bipolar disorder on Axis I, hypothyroidism on Axis III, noted "husband in jail" on Axis IV, and gave Belen a GAF score of 50 on Axis V. (R. 261) With respect to prognosis, Vargas and Dr. Berger wrote "not clear." (R. 261)

Their report indicates that Belen is suffering from sleep and mood disturbance, decreased energy, feelings of guilt/worthlessness, "pathological dependence or passivity," and isolation. (R. 262) When asked to rate Belen's mental capacity, Vargas and Berger circled the entry for "moderately limited" (R. 263), but when they were asked to rate specific activities related to understanding and memory, concentration and persistence, social interactions, and adaptation, they checked off "markedly limited" for 13 of 20 categories. (R. 264-66) The report further states that Belen is "unable to be around people or follow a work routine," and that she would miss more than three days of work per month due to her symptoms. (R. 266-68) Nevertheless, Vargas and Berger did not expect Belen's impairments to last twelve months. (R. 267) The report lists Belen's medications as Depakote, Paxil, and Ambien. (R. 266)

Belen continued to attend follow-up appointments with Vargas and Dr. Brito. In sessions with Vargas on September 18, 2006, and January 4, 2007, Belen discussed her husband's incarceration and her children's behavioral problems. Vargas noted Belen's constricted affect and her sad and anxious mood. Vargas's assessments ranged from dysthymia to major depression. As to current medications, however, Vargas listed "none." (R. 303, 308)

At an October 16, 2006 office visit, Dr. Brito observed Belen as having a full affect and intact thought processes. Her assessment was cyclothymia, a mood disorder.*fn9 (R. 304-05) Dr. Brito prescribed Trazadone, Zoloft, and Depakote, and stopped Ambien. (R. 304)

Dr. Brito met with Belen again on February 17, 2007. Belen told Dr. Brito that she had not been taking her medications for the past six months. (R. 299) Belen complained about stress associated with her teenage son. Dr. Brito's examination of Belen yielded nothing remarkable: Belen was well-nourished, well-groomed, and cooperative; her thought processes and perceptions were normal; her attention was "good" and her affect was "full range." Her mood was depressed. Dr. Brito's assessment was dysthymia and she prescribed Zoloft, Ambien, and Depakote. (R. 299)

After the February 17, 2007 office visit, Dr. Brito also completed a Psychiatric/Psychological Impairment Questionnaire concerning Belen. (R. 279-86) Dr. Brito listed her diagnosis as "major depression, recurrent psychotic," and assessed a current GAF score of 45, with a score of 50 for the past year. (R. 279) Dr. Brito rated most of Belen's mental activities as "markedly limited," and stated that she believed that Belen's impairments would last more than 12 months. (R. 282-85) Dr. Brito also concluded that Belen was likely to be absent from work more than three times per month due to her symptoms, but that she could perform low stress work. (R. 285-86)

Vargas's psychotherapy sessions with Belen continued through February, March, and April 2007. (R. 292-98) Belen continued to complain about her thirteen-year-old son, who was refusing to attend school, and her sixteen-year-old daughter, who was living with her boyfriend in Belen's apartment. Belen exhibited a depressed, sad, and anxious mood, and Vargas sometimes noted Belen's constricted affect. (Id.) Vargas's assessment during these therapy sessions was "major depression, recurrent psychotic." She calculated a GAF score of 50-55. (R. 292, ...

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