The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiff Cindy Bronzene, brings the above-captioned action pursuant to 42 U.S.C. § 405(g), seeking a review of the Commissioner of Social Security's decision to deny her application for disability insurance benefits ("DIB").
On January 7, 2008, plaintiff filed an application for DIB benefits. (Administrative Transcript at p. 67-69).*fn1 Plaintiff was 51 years old at the time of the application. Plaintiff completed two "Work Activity Reports - Employee" (Form SSA-821-BK). (T. 81-102). In those reports, plaintiff provided her work history from 1956 until 1983 including her time spent in the Navy and Army, construction work, work as a shrimp peeler and car wash attendant. (T. 86). Based upon the submissions, the agency determined that plaintiff's last insured date was September 30, 1983. (T. 104). Plaintiff claimed that she was disabled, beginning from her date of birth, December 21, 1956, due to a learning disability and mental impairments. On March 4, 2008, plaintiff's application was denied and plaintiff requested a hearing by an ALJ which was held on July 23, 2009. (T.13; 49-56). Plaintiff was accompanied by a non-attorney representative. On August 12, 2009, the ALJ issued a decision denying plaintiff's claim for benefits. (T. 12). The Appeals Council denied plaintiff's request for review on June 25, 2010 making the ALJ's decision the final determination of the Commissioner. (T. 1-4). This action followed.
I. Evidence Relating to Period Prior to Expiration of Insured Status -
September 30, 1983 The record contains sparse information for the
relevant time period. In December 1975,
plaintiff completed a Report of Medical History and denied any
depression, excessive worry, loss of memory or nervousness.*fn2
(T. 260). In January 1976, plaintiff completed another Report
on Medical History and denied a history of any psychiatric care. (T.
265). On May 12, 1977, plaintiff had a military physical and checked
"normal" for psychiatric history. (T. 263). In
August 1980, plaintiff completed a Medical Review and Orientation
Form. (T. 256). On the submission, plaintiff denied any psychiatric
treatment or treatment for any mental condition. Plaintiff was
examined by Peter Cassella, M.D. who noted that plaintiff had no
history of illegal drug use or emotional problems. (T. 257). In August
1980, plaintiff completed a Report of Medical History for her
enlistment with the Navy and denied any prior complaints relating to
depression, loss of memory or nervousness. (T. 258).
The record also contains plaintiff's Secondary School Record Transcript from Corinth Central School. (T. 271). Plaintiff ranked 76th out of 78 students in the class. In March 1975, plaintiff was admitted to Adirondack Community College as a full-time student for the fall semester. (T. 272).
II. Evidence After September 30, 1983
On February 16, 1990, plaintiff was evaluated at Saratoga County Medical Center upon referral from a social services worker with the Office of Vocational Rehabilitation ("OVR"). Plaintiff was referred "after inappropriate behaviors were displayed during an OVR appointment". (T. 278). Initially, plaintiff was evaluated by Coral Horner, a therapist and provided a long history of being unable to complete her goals or maintain employment. Plaintiff acknowledged that she had problems with her memory and concentration. (T. 278). Plaintiff suffered a head trauma at the age of three requiring surgery. Plaintiff claimed that she was sexually active around age 13 while under the influence of alcohol and often "at group parties".
(T. 279). Plaintiff completed high school and was briefly enrolled at Adirondack Community College. (T. 279). Plaintiff joined the Army but was honorably discharged due to marijuana possession. Plaintiff served time in the Navy and held a variety of "low-functioning odd jobs". Plaintiff denied any prior sexual or physical abuse. (T. 402). Plaintiff denied any psychiatric treatment or history, "other than a one time talk in high school with counselor - was referred by art teacher". (T. 278). Ms. Horner suspected that plaintiff suffered sexual and emotional abuse at an early age and an adolescent history marked with alcohol use.
Ms. Horner referred plaintiff to Ivan Engel, M.D. for a psychiatric evaluation. (T. 418). Plaintiff presented in a "confused and 'spaced-out' condition" and was described as "depressed, overwhelmed and tearful". Plaintiff denied any prior psychiatric history or any family psychiatric history. (T. 418). Dr. Engel discussed plaintiff's "family social history" and noted, "[t]his was not well elaborated during our meeting". Dr. Engel noted that Ms. Horner diagnosed plaintiff with post-traumatic stress disorder but concluded, "there is no indication that this is a correct diagnosis". Dr. Engel deferred diagnosing plaintiff at that time. (T. 419). Plaintiff was advised to begin therapy with Ms. Horner but pharmacological treatment was postponed.
In April 1992, Dr. Engel diagnosed plaintiff with possible Tourettes Syndrome*fn3 and prescribed Haldol and Artane.*fn4 (T. 416). Dr. Engel continued to treat plaintiff from 1992 through 1995 and consistently noted plaintiff was doing reasonably well and was "stable". (T. 411). Plaintiff was succeeding in school and in her work environment and interacting better with her daughter. Dr. Engel also noted that the vocal ticks and abnormal movements which led to the tentative diagnosis of Tourette's were decreasing. In June 1996, Dr. Engel examined plaintiff and found her "anxious" and "on the edge". (T. 406). Plaintiff felt Ms. Horner wanted to "terminate her case" and discussed some personal issues with a male friend recently diagnosed with cancer. Plaintiff also stated that she stopped taking Haldol. Dr. Engel did not find plaintiff to be a danger to herself or anyone else and advised plaintiff that she should continue treating with Ms. Horner. Plaintiff was prescribed Prozac.
The record contains voluminous records documenting plaintiff's visits with Ms. Horner. Plaintiff consistently treated with Ms. Horner from February 1990 through December 1997. In August 1990, Ms. Horner completed a "Comprehensive Treatment Plan" noting that plaintiff recently revealed a history of extreme emotional neglect and sexual abuse by non-family members. Ms. Horner suspected that this history contributed to plaintiff's failure at employment and schooling. (T. 328). In October 1992, Ms. Horner completed a "Treatment Plan" and diagnosed plaintiff with schizoid personality disorder. (T. 344). In February 1993, plaintiff was in school and increasing her course study at BOCES. Plaintiff discussed the possibility of a referral for alcoholism services however, Ms. Horner did not push the suggestion due to plaintiff's overall improvement. (T. 312). In April 1993, Ms. Horner completed a treatment plan and concluded that while plaintiff progressed with 93 weeks of treatment, continued treatment was needed. In July 1993, Ms. Horner noted that plaintiff was doing well after the death of her mother and living with her daughter in Corinth. Plaintiff was working for the summer and enrolled in three college courses but continued intermittent alcohol use. (T. 307). Plaintiff was compliant with Haldol.
During the time that she treated with Ms. Horner, Ms. Horner continually referenced plaintiff's history of abuse and neglect. Throughout the course of treatment, plaintiff's interpersonal skills improved, she developed relationships, attended school, was gainfully employed and consistently progressed.
On December 17, 1997, Ms. Horner completed a Discharge Summary with a diagnosis of Tourette's Syndrome. (T. 277). Ms. Horner noted that plaintiff was treated with a combination of medication, sheltered workshops and case management. Plaintiff developed interpersonal relationships and was living with her male partner. Plaintiff's case was closed as she was moving out of the county for a better school environment for her daughter.
On September 3, 2008, plaintiff's psychologist, Kimberly Brayton, J.D., Ph.D., provided a report regarding plaintiff's treatment. (T. 249). Dr. Brayton noted that she began treating plaintiff on December 22, 2006 for symptoms including withdrawal, poor sleep/appetite, extreme feelings of guilt and low self worth. Dr. Brayton noted that plaintiff's, "memory is very vague and quite confused. She has been unable to provide any timeline of events or activities in any coherent fashion". Dr. Brayton noted that plaintiff "alludes to being exposed to inappropriate sexual touching and behavior by various friends of her elder sister and neighbors". Dr. Brayton opined, "it is unclear what happened to Ms. Bronzene when she was young". However, the doctor continued, "she is quite responsible with obligations and commitments" and noted that plaintiff volunteers in a local nursing home, was a breast cancer survivor and works hard to help her daughter.
III. Plaintiff's Testimony at Administrative Hearing
On July 23, 2009, plaintiff testified before the ALJ at an administrative hearing. (T. 20). Plaintiff testified that she was receiving SSI.*fn5 (T. 22). Plaintiff testified that she has no memory of going to school but claimed that when she was in eighth or ninth grade, she was raped by friends who were much older. (T. 26). When asked if she had any medical treatment for the problems that she had in the 1960's and 1970's, plaintiff responded, "Absolutely not. My parents didn't refer to me to see anybody. Nobody seemed to mind. I had an art teacher that sent me up to the school psychologist." (T. 27). Plaintiff testified that she could not find any record of that visit and the non-attorney representative indicated that she was only able to obtain plaintiff's school records from Corinth School. The representative advised the ALJ that there were no written reports from the school psychologist. (T. 29).
The Social Security Act (the "Act") authorizes payment of disability insurance benefits to individuals with "disabilities." The Act defines "disability" as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). To be eligible for DIB, plaintiff must establish that her disability commenced on or before the date her insured status expired. 42 U.S.C. §§ 423(a)(1)(A) and (c)(1); 20 C.F.R. § 404.131. The plaintiff carries the initial burden of proving she is disabled within the meaning of the Act. 42 U.S.C. §§ 423(d) (5)(A); see Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002).
There is a five-step analysis for evaluating disability claims:
"In essence, if the Commissioner determines (1) that the claimant is not working, (2) that he has a 'severe impairment,' (3) that the impairment is not one [listed in Appendix 1 of the regulations] that conclusively requires a determination of disability, and (4) that the claimant is not capable of continuing in his prior type of work, the Commissioner must find him disabled if (5) there is not another type of work the claimant can do." The claimant bears the burden of proof on the first four steps, while the Social Security Administration bears the burden on the last step.
Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003) (quoting Draegert, 311 F.3d at 472) (the plaintiff bears the burden through the first four steps of the analysis); Shaw v. Chater, 221 F.3d 126, 132 (2d Cir. 2000) (internal citations omitted).
A Commissioner's determination that a claimant is not disabled will be set aside when the factual findings are not supported by "substantial evidence." 42 U.S.C. § 405(g); see also Shaw, 221 F.3d at 131. Substantial evidence has been interpreted to mean "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. The Court may also set aside the Commissioner's decision when it is based upon legal error. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).
Here, the ALJ found at step one that plaintiff has not engaged in substantial gainful activity since the alleged onset date (date of birth), December 21, 1956 through September 30, 1983, the date last insured. (T. 14). The parties do not dispute the ALJ's conclusion regarding the date that plaintiff was last insured. The ALJ noted, "[a]lthough the claimant engaged in substantial gainful activity for a brief period, the Administrative Law Judge will continue the sequential evaluation to determine whether she had been under a disability any time during the relevant period". (T. 14). At step two, the ALJ concluded that the objective medical evidence failed to establish the existence of a medically determinable impairment that could reasonably be expected to produce the claimant's symptoms. (T. 14). Thus, the ALJ concluded the sequential analysis and found that plaintiff was not under a disability as defined by the Social Security Act.
Given plaintiff's pro se status, the Court will construe plaintiff's arguments in a light most favorable to her. In seeking federal judicial review of the Commissioner's decision, plaintiff submitted three briefs/letters with exhibits. (Dkt. Nos. 13, 18 and 19) The Court has accepted and will consider all submissions and exhibits. Plaintiff argues: (1) the ALJ failed to adequately develop the medical record and failed to issue subpoenas for relevant testimony; (2) the ALJ erred when he failed to order a consultative examination; (3) the ALJ's decision is not supported by substantial evidence; ...