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Miladys Morales v. Commissioner of Social Security

January 17, 2012


The opinion of the court was delivered by: Kevin Nathaniel Fox United States Magistrate Judge




Miladys Morales ("Morales") commenced this action pro se against the Commissioner of Social Security ("Commissioner"), seeking review of an administrative law judge's ("ALJ") decision finding her ineligible for Supplemental Security Income ("SSI") payments, under Title XVI of the Social Security Act ("SSA"), 42 U.S.C. §§ 1381-1383f. The Commissioner filed an answer to the complaint, followed by a motion for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Thereafter, an attorney entered an appearance on behalf of Morales and filed a cross-motion for judgment on the pleadings. Before the Court are the parties' motions for judgment on the pleadings.

BACKGROUND Administrative Procedural History

On December 17, 2007, Morales filed an application for SSI benefits, which was denied. (Tr. 55-60). A hearing before an ALJ was conducted on March 12, 2009. (Tr. 34-52). On April 7, 2009, the ALJ found that Morales was not disabled. (Tr. 19-33). On September 9, 2010, the Appeals Council denied Morales's request for review of the ALJ's decision, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-5). This action followed. Non-Medical Evidence

Morales was born in the Dominican Republic, where she completed high school, and moved to the United States in 1986. (Tr. 38, 47). At the time of the hearing, Morales was 49 years old and testified that she spoke very little English. (Tr.37-39). According to Morales, she tried to learn English but could not concentrate. (Tr. 48). Morales testified that, in 1995, she attended a community college in the Bronx for a year and one-half. (Tr. 48). Morales also testified that, in the past, she worked in a hair salon and cleaned apartments, but she stopped working in 2007, after her daughter died. (Tr. 39-40). Morales stated that she had trouble concentrating and was seeing a psychiatrist every month. (Tr. 40-41). Morales testified that she had pain in her stomach, neck, left leg and lower abdomen. (Tr. 41-42). She indicated that she had an operation on her left leg and was expecting to have an operation on her right leg. (Tr.

42). According to Morales, she was able to sit for up to 30 minutes at a time and could stand for one or two hours. (Tr. 42). She could not lift or carry many pounds, since she suffers from pain associated with her fibroids. (Tr. 42). Morales cooked and cleaned sometimes, and her sixteen-year-old daughter helped her with shopping and laundry. (Tr. 43). Morales testified that she was able to travel by bus, but could not take the subway, because it was too crowded and made her anxious. (Tr. 43-44). Typically, Morales did not travel anywhere alone; instead, she would have her daughter or a neighbor accompany her most of the time. (Tr. 44). Morales had trouble sleeping and was taking Ambien, which would help her sleep for up to four hours at a time. (Tr. 44-45). She stated that she hears noises sometimes. (Tr. 45). Morales testified she had friends in the building where she lived, but spent most of her day laying down and doing nothing. (Tr. 45). She was able to dress and bathe herself, although with a little difficulty. (Tr. 46). According to Morales, she was very forgetful, lost things, and she could not concentrate sufficiently to watch television. (Tr. 46-47).

A vocational expert ("VE"), Melilssa Fass Karlin, testified at the hearing. (Tr. 48-50). She stated that Morales had worked as a hairstylist, which is light, skilled work with an "SVP [specific vocational profile] of 6." (Tr. 49). The ALJ asked the VE to consider a hypothetical person who is 49 years old, with the same past relevant work as Morales, who is unable to communicate in English, has the ability to do light work, but is unable to carry out detailed or complex instructions and is unable to work with the public. (Tr. 49). The VE testified that such a person would not be able to perform her past relevant work, but could perform the work of an assembler of small products, which is light, unskilled work, "with an SVP of 2." (Tr. 49). The VE stated that 1,661 such jobs existed in the local and 39,482 in the national economy. (Tr. 49). The VE also testified that the hypothetical person could also do work as a marker, which is light, unskilled work, of which 1,456 such jobs existed in the local and 85,202 in the national economy. (Tr. 49-50). Moreover, the VE testified, the hypothetical person could work as a machine tender, which is light, unskilled work of which 1,738 such jobs existed in the local and 68,311 in the national economy. (Tr. 50). The ALJ asked the VE: "If the worker were unable to maintain attention and concentration for more than 30 minutes at a time, how would that impact on the jobs?" (Tr. 50). The VE responded: "They could do the work I identified or any work in the national or regional economy." (Tr. 50). The ALJ also inquired whether the VE's testimony was consistent with the way in which the jobs mentioned are described in the Dictionary of Occupational Titles ("DOT"), and the VE responded: "Yes, Judge."

Medical Evidence

New York Presbyterian Hospital On June 9 and 13, 2006, Morales was seen at the New York Presbyterian Hospital. (Tr. 173-74). She complained of chest pain, dizziness and palpitations, and reported a strong family history of heart disease and the recent death of her seventeen-year old daughter. (Tr. 173-74). A stress test was performed; it revealed, after eight minutes, chest pain and a drop in Morales's blood pressure. (Tr. 173). On June 13, 2006, a cardiac catheterization was performed, which revealed normal coronary arteries and normal systolic left ventricular function. (Tr. 173). The diagnosis was atypical chest pain with possible anxiety. (Tr. 173).

F.E.G.S. Lenox Hill Hospital

On November 1 and 8, 2007, Morales was seen at the F.E.G.S. Lenox Hill Hospital. (Tr. 233-45). On November 1, 2007, she was seen by a social worker, Nancy Diaz. Morales reported a long history of depression with multiple hospitalizations after she found her seventeen-year old autistic daughter dead. (Tr. 237). She also reported auditory and visual hallucinations in the past, but denied having them at that time. (Tr. 237). Morales was taking psychiatric medication and seeing a psychiatrist every two weeks. (Tr. 237). She reported feeling depressed, having little interest or pleasure in doing things, trouble sleeping, feeling tired and trouble concentrating nearly every day. (Tr. 238). She also stated she could do laundry, make her bed, dress herself, read, watch television and take care of her personal hygiene. (Tr. 239).

On November 8, 2007, Dr. Nana Alvazi ("Dr. Alvazi"), a physician at Lenox Hill Hospital, examined Morales. (Tr. 242-45). Morales had a normal station and used no assistive devices, but walked with a limp. (Tr. 243). She wore a brace and had a scar from surgery on her left heel that was healing. (Tr. 243). Dr. Alvazi noted that Morales had a limited range of motion in her left ankle and paraspinal tenderness along her entire spine. (Tr. 243). Morales reported that the pain in her left foot varied from six to ten on a one-to-ten scale. (Tr. 243). Dr. Alvazi diagnosed Morales as follows: status post-left-heel surgery, uterine fibrosis and a large ovarian cyst, esophagitis, gastritis, possible coronary artery disease, and major depression and post-traumatic stress disorder. (Tr. 245). She recommended bereavement group psychotherapy. (Tr. 245).

North General Diagnostic and Treatment Center Morales was treated at the North General Diagnostic and Treatment Center ("NGDTC") from 2006 through 2008. (Tr. 136-57, 213-32, 246-315). Dr. Daniel Pilowsky ("Dr. Pilowsky"), a psychiatrist, noted on July 12, 2007, that Morales "remained moderately depressed and very anxious with insomnia and a variety of psychosomatic symptoms such as headaches and rigidity of the neck muscles." (Tr. 297). On November 29, 2007, Dr. Pilowsky completed a Treating Physician's Wellness Plan Report. (Tr. 223-26). Morales was diagnosed with a major depressive disorder and a generalized anxiety disorder, and she responded partially to her depression treatment. (Tr. 223). Dr. Pilowsky stated that Morales was "[t]emporarily unemployable," but that the following six months may show whether her condition should resolve. (Tr. 226).

On December 4, 2007, when Morales visited NGDTC, she complained of left-heel pain. (Tr. 141-42). Morales had undergone surgery to remove a heel spur, on September 24, 2007, and had been prescribed a controlled-ankle-motion ("CAM") walker, which she had stopped using two weeks before visiting NGDTC on December 4, 2007. (Tr. 141). Morales was instructed to resume using her walker, prescribed Motrin and instructed to follow-up in two weeks. (Tr. 142). On December 18, 2007, she returned to NGDTC using her walker, but admitted that she had been wearing her normal footwear during the previous week. (Tr. 139). An examination was conducted; it revealed that the surgical area on her left foot had heeled well. (Tr. 140). Although Morales reported pain in her ankle from the walker and mild pain in her heel upon palpation, she stated that her pain was "much better" than it had been prior to the surgery. (Tr. 140).

On January 15, 2008, Morales was seen for continued pain in her left heel. (Tr. 137-40). An examination was performed, and she had pain on palpitation in the left ankle and heel. (Tr. 138). Morales received injections to her left ankle and heel, which relieved her pain. (Tr. 138). A Lidoderm patch, for topical pain relief, and a non-steroidal anti-inflammatory medication were prescribed for Morales. (Tr. 138).

On April 28, 2008, Morales underwent pelvic surgery and her treating physician directed that she be excused from work for one month. (Tr. 213). She was prescribed medication and a Foley catheter until her next office visit. (Tr. 214). Morales was advised to avoid heavy lifting and strenuous exercise. (Tr. 214).

On June 19, 2008, Dr. Blanche Skurnick ("Dr. Skurnick") completed a Physical Evaluation form. (Tr. 281). On examination, Morales appeared well developed and groomed and had tenderness in her abdomen. (Tr. 281). Dr. Skurnick's impression was that Morales was "basically [a] healthy woman" with major depression, urinary tract infection, gastritis, constipation and deconditioning. (Tr. 281).

Dr. Louis Tranese On February 20, 2008, Dr. Louis Tranese ("Dr. Tranese") performed a consultative orthopedic examination of Morales. (Tr. 182-85). Morales reported that she was able to bathe, dress and groom herself on a daily basis. (Tr. 182-83). Dr. Tranese noted that Morales appeared to be in no pain at the beginning of the examination and became tearful soon after the examination began, explaining she was sad because of the loss of her daughter. (Tr. 183). Morales presented with a left lower extremity CAM walker and straight cane and was unable to walk on her heels and toes without difficulty, secondary to left ankle and heel pain. (Tr. 183). She was able to squat fully, but reported left ankle pain. (Tr. 183). Morales's station was normal and her gait was antalgic if she walked without her walker and cane. (Tr. 183). Dr. Tranese noted that Morales needed no help changing or getting on and off the examination table, and she was able to rise from a chair without difficulty. (Tr. 183). On examination, Morales had full strength and range of motion in her cervical spine and upper extremities. (Tr. 183). She had full manual dexterity and grip strength. (Tr. 183). An examination of Morales's thoracic and lumbar spines was normal, and a straight-leg-raising test was negative. (Tr. 183-84). Morales had full muscular strength in her lower extremities and a full range of motion in her hips, knees and ankles. (Tr. 184). No joint effusion, inflamation, or instability in the left heel or ankle was observed, and Morales's surgical scar was well healed. (Tr. 184). The remainder of Morales's bilateral lower extremity joints were unremarkable for effusion, inflamation or instability. (Tr. 184). Dr. Tranese diagnosed a history of left-heel surgery with complaints of persisting episodic left ankle and heel pain, and depression. (Tr. 184). Dr. Tranese stated that Morales's prognosis was stable and she "may have moderate limitations with stair climbing and ambulating extended distances and mild to moderate limitations with standing for long periods." (Tr. 184). Dr. Tranese found no limitation in sitting and no other physical functional deficit. (Tr. 184).

Dr. Renee Ravid On February 26, 2008, Dr. Renee Ravid ("Dr. Ravid") performed a psychiatric consultative examination of Morales. (Tr. 186-88). On examination, Morales's mood was labile, and she burst into tears frequently. (Tr. 186). Morales reported that she had fears, such as when she is in enclosed spaces, and experienced auditory hallucinations. (Tr. 186-87). Dr. Ravid noted no evidence of perceptual disturbance during the interview. (Tr. 187). Morales was alert and oriented to person, place and time. (Tr. 187). Dr. Ravid noted that Morales's recent memory was somewhat impaired, and her remote memory was grossly intact. (Tr. 187). Dr. Ravid observed that Morales appeared to have low average intellectual functioning, and her insight and judgment were limited. (Tr. 187). According to Dr. Ravid, Morales's allegations of depression were consistent only in part with the examination findings, because she was not fully cooperative during the testing. (Tr. 187). Dr. Ravid opined that Morales's difficulties with relatively simple tasks, such as counting backwards from ten, appeared excessive in light of her high school education. (Tr. 187). Similarly, her difficulties with simple computations appeared to be excessive as she was able to subtract correctly a more difficult problem, but was unable to perform a simple addition. (Tr. 188). Dr. Ravid also noted that Morales's report that she did not know the colors of the United States flag was highly unusual. (Tr. 188). According to Dr. Ravid, the results of the examination could not be used to document any specific vocational limitations. (Tr. 187).

Emma L. Bowen Community Service Center Morales was treated at the Emma L. Bowen Community Service Center, a.k.a. Upper Manhattan Mental Health Center, Inc., from March 2008 to February 2009. (Tr. 316-61, 464-67). On March 7, 2008, Morales was seen by a social worker who noted that she was oriented to time, place and person, and her appearance and relatedness were good. (Tr. 346). Her speech was soft but coherent and her attitude was good. (Tr. 346). Although Morales's mood was anxious and depressed, her affect was appropriate, thought process logical and judgment and insight were good. (Tr. 346). Morales reported auditory and visual hallucinations. (Tr. 346). Her immediate, recent and remote memory were fair, intelligence average and impulse control was fair. (Tr. 347).

On March 25, 2008, Dr. Andres Orozco ("Dr. Orozco") completed a psychiatric assessment of Morales. (Tr. 335-40). On examination, Morales's behavior was calm, her speech slow, affect labile, mood dysthymic and anxious, and her thought process coherent. (Tr. 337). Morales showed no evidence of delusions, and she reported auditory hallucinations, but no suicidal or homicidal ideas. (Tr. 337-38). Morales's attention, concentration and memory were fair and her immediate, recent and remote memory intact. (Tr. 338). Dr. Orozco noted that Morales's general knowledge, calculation, thinking capacity and impulse control were adequate, while her insight and judgment were fair. (Tr. 388-89). Dr. Orozco diagnosed major depression and assigned Morales a global assessment of functioning ("GAF") score of 55. (Tr. 339). On October 16, 2008, Dr. Orozco noted that Morales presented with "multiple somatic complaints and menopause symptoms which make her feel unstable" and her "mood is depressed and affect labile." (Tr. 325).

On January 24, 2009, Dr. Orozco and a therapist, Raymond Hall ("Hall"), completed a review of Morales's treatment plan. (Tr. 320-22). Although they indicated that Morales remained depressed, Morales's GAF score was 60, and she was assessed as having moderate limitations in her health, social and interpersonal activities, educational and vocational abilities, money-management skills and leisure activities. (Tr. 320). The review indicated that Morales made moderate progress toward her treatment goal, and it was recommended that she continue to obtain psychotherapy and take medication. (Tr. 321-22).

On February 18, 2009, Dr. Orozco completed an updated psychiatric evaluation of Morales. (Tr. 316-18). He noted that Morales's mother died of pneumonia in December 2008. (Tr. 316). Morales's social and vocational functioning was described as limited. (Tr. 316). Dr. Orozco stated that Morales's general attitude was sad, her speech slow, her mood somber and affect labile. (Tr. 317). Morales's thought content, perceptual abilities, cognitive functioning, impulse control and insight and judgment were within normal limits. (Tr. 317-18). Dr. Orozco determined that Morales's GAF score was 55 and recommended continued therapy and medication. (Tr. 318).

Dr. Renato Giorgini On March 11, 2008, Dr. Renato Giorgini ("Dr. Giorgini"), a podiatrist, completed a Treating Physician's Wellness Plan Report. (Tr. 224-25). He stated that Morales's surgery was successful and her left heel was pain free. (Tr. 224). Dr. Giorgini noted that Morales needed to continue physical therapy and might be able to return to work by July 2008. (Tr. 224). He indicated that Morales was ...

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