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Francia M. Vargas v. Michael J. Astrue

July 20, 2011


The opinion of the court was delivered by: P. Kevin Castel, District Judge:


Plaintiff Francia M. Vargas, proceeding pro se, seeks judicial review of a final decision by the Commissioner of Social Security (the "Commissioner") denying her application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq. Plaintiff asserts that the decision of the Administrative Law Judge ("ALJ") was "erroneous, not supported by substantial evidence on the record, and/or contrary to the law." (Compl. ¶ 9) Defendant has moved for judgment on the pleadings pursuant to Rule 12(c), Fed. R. Civ. P. For the reasons explained below, the defendant's motion is granted.


On January 10, 2008, plaintiff applied to the Social Security Administration ("SSA") for SSI benefits. (R. 97)*fn1 On May 13, 2008, the SSA determined that plaintiff's alleged mental disorder and hearing loss were not severe enough to prevent her from working and denied her application. (R. 50, 53-56) The SSA notified plaintiff that her claim was disapproved and informed her of her right to request a hearing. (R. 54-55)

Plaintiff then requested a de novo hearing before an Administrative Law Judge ("ALJ"), which was held on October 1, 2009. (R. 63-68) Plaintiff appeared with a representative before ALJ Margaret L. Pecoraro. (R. 29-49)

On October 23, 2009, ALJ Pecoraro denied plaintiff's claim for benefits. (R. 13-28) After applying the five-step sequential test for determining whether an individual is disabled, ALJ Pecoraro concluded that plaintiff is not disabled under section 1614(a)(3)(A) of the Social Security Act. (R. 19) She reviewed plaintiff's claims stemming from her mental disorder, hearing loss, as well as pain in her knees, and determined that plaintiff has a severe combination of impairments -- depressive disorder and panic disorder without agoraphobia, left ear hearing loss, and mild degenerative joint disease of the knees -- but still has the residual functional capacity ("RFC") to perform the full range of light work defined in 20 CFR 416.967(b). (R. 23)

On October 29, 2009, plaintiff requested review of the ALJ's decision.

(R. 8-11) The SSA Appeals Council denied plaintiff's request, and ALJ Pecoraro's decision became the final decision of the Commissioner on July 16, 2010. (R. 1) This case was then ripe for judicial review.

On August 3, 2010, plaintiff, proceeding pro se, filed a timely action with this Court seeking review of the Commissioner's final decision.*fn2 (Compl. ¶ 1) A notice of appearance was filed on behalf of defendant on September 10, 2010. (Docket #4)

Defendant moved for a judgment on the pleadings, pursuant to Rule 12(c), Fed. R. Civ. P., on February 7, 2011. (Docket #10).


At the hearing before ALJ Pecoraro, plaintiff testified about her age, education, background, family, work history, daily activities, and physical and psychiatric condition. (R. 33-48) ALJ Pecoraro also reviewed documentary evidence including: plaintiff's medical records from Morris Heights Health Center ("MHHC"); a report from Dr. Arlene Broska, a psychologist who performed a consultative psychiatric evaluation on the plaintiff; the opinion of a State agency review psychologist; a report from Dr. James Naughton, an internal medicine specialist who performed a consultative physical examination on the plaintiff; and a report from Dr. Abraham Eviatar, an ear, nose and throat specialist who performed a consultative physical examination on the plaintiff.

A. Non-Medical Evidence

Plaintiff was born in the Dominican Republic on November 19, 1969, and immigrated to the United States on October 10, 1994. (R. 33, 97) She was thirty-eight and thirty-nine years old during the period at issue. (R. 107) She lives on the first floor of a walk-up apartment building with her two children, a daughter who is fifteen years old and a son who is ten years old. (R. 44, 98) Both children have medical problems due to premature births and receive SSI benefits. (R. 34-35) Plaintiff helps her son get ready for school each morning, prepares his breakfast and takes him to school. (R. 39) Every Friday, she walks her daughter to a therapy appointment five blocks away. (Id.) Plaintiff does chores around the house which include: cleaning the apartment, making meals, helping her son with his homework, doing the laundry, paying the bills with her children's SSI benefits, and grocery shopping when she receives food stamps. (R. 38-41) She has no friends and her only family is her father, who she has not seen in "a very long time." (R. 39-40) Two or three times a week, she goes to a church two blocks from her home for church services and bible study. (R. 40) Church members also visit her to pray and talk. (R. 40-41)

Plaintiff completed twelve years of education in the Dominican Republic but does not speak or write in English. (R. 33, 124) Plaintiff reported that she worked in the past as a waitress, but she has no record of earnings. (R. 34, 106, 120-21, 126-27) Plaintiff does not have a driver's license, and instead takes the bus and subway. (R. 47-48, 113)

Plaintiff testified that she missed scheduled appointments at the MHHC because she was too depressed to go out. (R. 36) Plaintiff initially indicated that she was taking Ambilify, Trazadone and Provigil for her depression and trouble sleeping. However, she later testified that she had run out of medicine after she stopped attending appointments at MHHC and acknowledged that she had not taken any medication for her depression since 2008. (R. 35-37) She testified that when she was getting regular treatment, she felt better. (R. 38)

Plaintiff testified that she had been receiving acupuncture therapy for her knee for the previous few months. (R. 42-43, 46-47) She testified that a doctor had prescribed a cane for her in 2006, and that she used it every day in her home and outside.

(R.43) She testified that her right knee was painful and because she favored it, her left knee was starting to bother her. (Id.) She stated that her knees hurt when she sat for long periods of time, and worsened when she lay down. (Id.) She stated that she was able to climb the flight of stairs to her apartment with discomfort. (R. 44) She stated that she had been prescribed pain medication, but it made her sleepy. (Id.)

B. Medical Evidence

1. Evidence Prior to Filing of Application for Benefits

Plaintiff's medical records included treatments for mental health issues, knee pain and hearing loss. Plaintiff was treated for mental health issues from 2001 to 2007 at Morris Heights Health Center. (R. 150-62, 254-64, 291-95) In February 2001, plaintiff visited MHHC complaining of depression after learning of fetal defects during her pregnancy. (R. 275, 158-60) After observing that her mood was moderately depressed and her affect anxious, a psychiatrist diagnosed dysthymia and recommended therapy. (R.160)

In January 2002, plaintiff was screened by a certified social worker. (R. 150-52) On April 4, 2002, she was screened by another certified social worker. (R. 153-57) Intake records from this visit describe plaintiff as depressed, anxious and reporting auditory and visual hallucinations. (R. 153) Specifically, she reported hearing voices and seeing shadows. (R. 156) The social worker reported that plaintiff's intelligence was average and that she was fully oriented to person, place and time. (Id.) She also noted that plaintiff's appearance, behavior, speech and thought processes were all normal. (R. 155-56) The social worker diagnosed major depression with psychosis. (R. 157)

Plaintiff continued to receive treatment from MHHC through August 2007. (R. 308) Records from this time report that she continued to feel anxious and depressed. (R. 256-57, 273-74) In September 2006, plaintiff's primary care physician, Dr. Robert Sheldon, completed a residual functional capacity assessment. (R. 250-53) In this assessment, Dr. Sheldon opined that her depression seldom interfered with her attention and concentration. (R. 253)

In October 2006, a licensed clinical social worker at MHHC, Miguel Angel Medina, completed a mental impairment questionnaire. (R. 291-95) He noted that plaintiff's case had been opened in September 2003 and while she had initially received weekly treatments, she was presently receiving biweekly treatments. (R. 291) He reported that she responded positively to both her individual psychotherapy and medication. (Id.) He stated that plaintiff had four or more episodes of decompensation within a twelve-month period because she was not taking her medication as prescribed and that she was more functional when she was on the medication. (R. 292) Plaintiff reported no negative side-effects from the medication. (R. 291) Mr. Medina assessed plaintiff's functional limitations, opining that she had mild limitations in her activities of daily living, moderate difficulties in maintaining social functioning, and marked deficiencies in concentration, persistence and pace. (R. 292) He noted that plaintiff had "unlimited or very good" ability to understand, remember, and carry out very short and simple instructions and "limited but satisfactory" ability to remember work-like procedures, maintain regular attendance and be punctual. (R. 293) Plaintiff was unable to meet competitive standards for sustaining an ordinary routine without special supervision or completing a normal workday and workweek without interruptions from psychologically-based symptoms. (Id.) The social worker diagnosed the plaintiff with major depressive disorder with psychotic features. (R. 291)

In November 2007, Plaintiff was terminated from mental health treatment at MHHC because she failed to keep scheduled appointments. (R. 255)

Plaintiff was treated for right knee pain from 2005 to 2007. (R. 218, 171, 205-09) In December 2005, Dr. Geoffrey Phillips performed an arthroscopy, partial lateral meniscectomy, and lateral release of the plaintiff's right knee after a MRI revealed a lateral meniscus tear and a CT scan confirmed patellar tilting and maltracking. (R. 199-204, 215-18)

During a physical examination at MHHC in September 2006, plaintiff's primary care physician, Dr. Sheldon, observed that she had full range of motion in her knees with slight crepitance. He diagnosed mild degenerative joint disease of the knees, with plaintiff's right knee being worse than her left. (R. 171) As previously noted, Dr. Sheldon completed a residual functional capacity questionnaire in that same month. (R. 250-53) The report notes that Dr. Sheldon had been plaintiff's primary care doctor since 1995 and that he saw her every six to eight months. (R. 250) He opined that plaintiff could walk up to five blocks without rest, sit up to two hours without getting up and stand up to four hours without sitting or walking around. (R. 251) In an eight-hour work day, plaintiff could be expected to sit for at least six hours and stand/walk for about two hours. (Id.) She required no unscheduled periods of walking around, however, she had to be able to shift positions at-will, from sitting, standing or walking. (Id.) Dr. Sheldon opined that plaintiff could twist, stoop, crouch, and climb occasionally, and lift less than ten pounds frequently and up to twenty pounds rarely. (Id.) She did not have limitations as to grasping, turning, fine manipulation or reaching. (R. 252) Once again, Dr. Sheldon diagnosed mild degenerative joint disease of the knees as well as left ear hearing loss.

(R. 250)

Plaintiff attended physical therapy at Bronx-Lebanon Hospital Center in June 2007, after being referred by Dr. Sheldon. (R. 205-09) Plaintiff complained of a gradual onset of pain in her left knee over the previous eight months. (R. 206) She had not been taking any medication for the pain. (Id.) She rated the pain as a "6" out of "10" in severity, and noted that it became worse when walking, climbing stairs, and squatting. (Id.) The physical therapist observed tenderness in plaintiff's left patella tendon and a limited ability to squat. (R. 207) Plaintiff was discharged from therapy in August 2007, due to a lack of attendance. (R. 205)

Plaintiff had a long history of left-sided hearing difficulty. In October 2002, plaintiff underwent an audiological evaluation which revealed borderline normal hearing in the right ear and severe mixed hearing loss in the left ear. (R. 167) The following month, a tympanomastiodectomy was performed to repair a perforated left eardrum. (R. 165, 168) As a result of plaintiff's failure to adhere to follow-up care, she developed an infection in her ear canal which resulted in partial failure of the graft. (Id.) In January 2003, plaintiff underwent ...

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