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Katerin Escalante v. Michael J. Astrue

January 4, 2012


The opinion of the court was delivered by: Denise Cote, District Judge:


Plaintiff Katerin Escalante ("Escalante") brings this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking review of the final decision of the Commissioner of Social Security ("Commissioner") denying her eligibility for Supplemental Security Income ("SSI") benefits as provided for under the Social Security Act ("the Act"). The Commissioner has moved for judgment on the pleadings affirming his final decision. Escalante has cross-moved for remand for further proceedings to address any legal error or to develop the record. For the following reasons, Escalante's motion is granted. The case is remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Opinion.


The following facts are taken from the administrative record and are undisputed. Escalante was born in 1989. She dropped out of school in the ninth grade. Apart from occasionally baby-sitting a young cousin, Ecalante has never worked. She claims that from June 3, 1990, she has suffered from disabilities that leave her unable to work and thus eligible for SSI benefits. These are principally obesity, asthma, headaches, and depression. The record indicates that on various occasions, Escalante has reported experiencing seizures and auditory hallucinations.

I. Medical Record Escalante lives with her parents, sisters, and brother in the Bronx. According to a report submitted by Escalante in connection with her Social Security claim (and completed by Escalante's mother, Elvira Lozado ("Lozado")), Escalante spends most of her time inside the family's apartment, "drawing, reading . . . sometimes playing video games[, and] always listening to music." While Escalante "sometimes goes outside when it [sic] cool or cold," she has difficulty going outside by herself, because "[s]he gets nervous and shy and uncomfortable." The report states that Escalante "has trouble breathing, hearing voice [sic] and sometimes sees things." Escalante attended special education classes until the eighth grade, and dropped out of school in the ninth grade.

The medical evidence in the record dates from May 1997, when Escalante was taken to the emergency room at Beth Israel Medical Center ("Beth Israel") for treatment following an acute asthma attack. Beth Israel doctors diagnosed acute asthma exacerbation and an upper respiratory tract infection. Escalante was treated with albuterol, and upon discharge was prescribed penicillin, Tylenol, and Proventil syrup.

The next medical record begins over six years later. On November 20, 2003, Lozada brought Escalante to the emergency room of the Metropolitan Hospital Center ("MHC"). According to the physician notes, Escalante stated that she had been "hearing voices" for two days, "commanding [her] to hurt [her]self, telling her to go away, and say[ing] derogatory things to her." The examining physician at MHC noted that Escalante suffered from obesity, that she had a history of developmental delay, and that there was a significant family history of mental illness, including two uncles and Escalante's younger sister. Escalante is described as an "obese female, shy, poor eye contact, cooperative." While reporting auditory hallucinations, Escalante denied experiencing visual or tactile hallucinations. The examining physician's global assessment of functioning ("GAF") diagnosis was 35,*fn1 and he admitted Escalante to MHC for psychological inpatient treatment. Escalante was discharged from MHC in early December 2003 (the exact date is illegible). The notes from her discharge are virtually illegible, but do appear to indicate that Escalante had responded well to treatment. She no longer claimed to be hearing voices. The GAF diagnosis at discharge was 60.*fn2

Over three years later, on March 20, 2006, Escalante was admitted to the emergency department at the Lincoln Medical and Mental Health Center ("Lincoln"), complaining of difficulty breathing, chest pain, and asthma. Lincoln's records indicate that Escalante weighed 283 pounds. She appeared to be in "mild/moderate distress" with "wheezing/crackles". The records do not indicate any psychological abnormality; rather, Escalante appeared "independent," "oriented to time, person and place," and had "normal speech."

From February to May 2006, Escalante attended mental health treatment at Sound View Throgs Neck Community Mental Health Center ("Sound View"). At Sound View, Escalante was treated by psychiatrist Dr. Stewart Schwartz ("Schwartz") and social worker Bernice Rivas ("Rivas"). The Sound View intake form and interview notes from February 1, 2006 indicate that Escalante had recently dropped out of school. The interview notes reflect that Escalante has "a complex, leading to social phobia and no self-confidence due to being overweight." Escalante was "alert, appearing anxious and depressed[.]" She reported "no delusions [and] no hallucinations." Her GAF diagnosis was 55.

Escalante attended four further appointments with either Schwartz or Rivas at Sound View. On March 9, 2006, she was prescribed Zoloft, an antidepressant. Between March 9 and May 4, however, Escalante cancelled six scheduled appointments. On May 4, Escalante and Lozada attended an appointment with Schwartz. Escalante indicated to Schwartz that she "fe[lt] a little better" with the Zoloft. Schwartz confronted Escalante on her poor attendance record, which provoked an angry response from Escalante. According to Schwartz, Escalante "does not want to accept any responsibility for her . . . overeating even though she is nearly 17." Schwartz noted that the plaintiff was "not psychotic" and increased her Zoloft dosage. On May 8, Escalante and Lozada attended a session with Rivas, in which Escalante was described as alert and verbal. Rivas discussed Escalante's lackluster attendance, which was attributed to Escalante's "social phobia and feelings about her weight." Lozada agreed that it might help if she traveled with Escalante to the sessions, at least until Escalante began to feel more comfortable in public. Escalante told Rivas that she had not been experiencing delusions or hallucinations. Escalante's last session at Sound View was with Rivas on May 22. Escalante was described as "alert . . . normal mood." The session focused on school and Escalante's goals. Rivas wrote that Escalante was "not sure about choosing HS or GED, asking [Rivas] questions, [Rivas] providing [Escalante] with help, reinforcing her use of self-determination." Again, no delusions or hallucinations were reported, and another appointment was scheduled. Escalante did not attend this appointment, nor the three succeeding appointments scheduled thereafter. There are no further records of Escalante attending therapy sessions at Sound View.

Beginning on December 31, 2001, Escalante's treating physician was Dr. Arpita Datta. On February 27, 2009, following Escalante's application for New York state disability benefits and SSI benefits, Dr. Datta completed a report on Escalante's condition and functional level. According to Dr. Datta, since the end of 2001, she had seen Escalante approximately every three to four months. As of early 2009, Escalante was 62 inches tall and weighed in excess of 300 pounds. Her blood pressure was 140/90. Dr. Datta's treating diagnoses were asthma and obesity. For the asthma, Dr. Datta had prescribed Albuterol, Singulair, and use of a nebulizer. Escalante's experienced asthma attacks "intermit[edly][,] once to twice [per] year." In 2008, Escalante experienced only one acute asthma attack, but no "severe" attacks requiring a hospital visit. On January 23, 2009, however, the date of Dr. Datta's last examination, Escalante had exhibited wheezing. According to Dr. Datta, Escalante's only physical problems were "obesity and mild, intermittent asthma." Escalante was "otherwise normal." Furthermore, Dr. Datta indicated that Escalante's asthma responded well to the Albuterol that had been prescribed.

From a mental standpoint, Dr. Datta wrote that as of her most recent examination, Escalante displayed normal attitude, behavior, speech, thought, mood, and affect. Dr. Datta's functional assessment of Escalante was that Escalante had a "normal" ability to perform the "activities of daily living," and a "normal" ability to "function in a work setting." Dr. Datta did not complete the section of the form pertaining to Escalante's ability to carry out work-related physical activities such as lifting/carrying or standing/walking. She did indicate that Escalante had "no limitation" in understanding and memory, sustained concentration, and social interaction. Nevertheless, Dr. Datta checked a box at the end of the form indicating that she could not "provide a medical opinion regarding this individual's ability to do work-related activities." Dr. Datta concluded the form by stating that Escalante should seek to "lose weight and lead a healthy life by surgery or dieting."

Escalante applied for SSI on January 28, 2009. She visited two consulting examiners in early 2009 while she was applying for disability benefits. Dr. Herb Meadow, a psychiatrist, examined Escalante and reported on her mental health. According to Dr. Meadow, Escalante came to the examination by taxi with Lozada, but stated that she could take public transportation on her own. In his report, Dr. Meadow states that Escalante has difficulty sleeping and "gets depressed at times with dysphoric moods". While "she states she still occasionally hears voices . . . what she actually describes are hypnopompic and hipnagogic phenomena." While Dr. Meadow found Escalante to be depressed, he described her "manner of relating [as] adequate" and her "cognitive functioning [as] low average." Dr. Meadow found that Escalante "would benefit from psychiatric treatment," but he nevertheless found that Escalante "would be able to perform all tasks necessary for vocational functioning."

Dr. Marilee Mescon, a specialist in internal medicine, performed a consultative examination on March 24, 2009. Dr. Mescon's examination focused on Escalante's asthma and obesity. At the time of the examination, Escalante was 60 inches tall and weighed 310 pounds. Escalante told Dr. Mescon that her home nebulizer helped suppress her asthma attacks, and that she had not had a serious attack provoking a trip to the hospital in two years. Escalante did indicate to Dr. Mescon that when Escalante "is exposed to dust and when she has an upper respiratory tract infection, her asthma gets worse." Dr. Mescon wrote that Escalante is "a very pleasant, well-nourished, well-developed obese woman in no respiratory distress [who is able] to speak in full sentences." While demonstrating "some difficulty walking on her heels and toes," Escalante "[n]eeded no help changing for [the] exam or getting on and off the exam table. [She was able] to rise from [her] chair without difficulty." Dr. Mescon ...

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