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Steven Montaldo v. Michael J. Astrue

March 15, 2012


The opinion of the court was delivered by: Sidney H. Stein, U.S. District Judge.


Plaintiff Steven Montaldo brings this action to review the Commissioner of Social Security's final decision denying him Supplemental Security Income and Disability Insurance Benefits, pursuant to 42 U.S.C. § 405(g). Both parties have moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Because the Commissioner's determination was free of legal error and supported by substantial evidence, the Court grants judgment on the pleadings in his favor.


A. Procedural history

On January 10, 2007, Steven Montaldo applied for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB"), alleging that he was disabled. (R. at 97, 101.)*fn1 During his intake interview with the Social Security Administration ("SSA"), Montaldo stated that his ability to work was limited by Alport's disease, constant urination, hypertension, a heart condition, depression, gout, and fatigue. (R. at 129-30.)

On March 26, 2007, the Social Security Administration denied Montaldo's applications.

(R. at 57, 61.)

At Montaldo's request, Administrative Law Judge ("ALJ") Kenneth L. Scheer conducted a hearing on January 29, 2009, at which Montaldo was represented by counsel.

(R. at 26.) At the hearing Montaldo moved to limit his disability claim to an agreed upon "closed period" from December 22, 2006 until November 1, 2008, rather than pursue a claim for an ongoing disability. (R. at 24, 28.) On February 18, 2009, the ALJ issued a written finding that Montaldo was not disabled during the closed period. (R. at 18, 25).

The Appeals Council denied Montaldo's request for review of the ALJ's decision on May 26, 2009, and the ALJ's decision became the final decision of the Commissioner of Social Security. (R. at 10.) The Appeals Council received additional evidence on September 16, 2009 and added it to the Record. (R. at 5.) The Appeals Council then set aside its May 26 decision in order to consider the new material. (R. at 2.) After considering the additional evidence, it again denied Montaldo's request for review of the ALJ's decision. (Id.)

Montaldo then filed this action. The parties have each moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Pursuant to 42 U.S.C. § 405(g), Montaldo seeks remand for further administrative proceedings. The Commissioner asks that the district court affirm the decision to deny benefits and to dismiss plaintiff's complaint.

B. Factual background

1.Non-medical history

Montaldo is a fifty-seven year old high school graduate who attended some community college and vocational programs. (R. at 39.) He lived alone in an apartment in the Bronx during the period for which he sought disability. (R. at 39, 97, 115.)

a. Plaintiff's testimony

At the hearing, the ALJ questioned Montaldo about his employment history, including the periods before, during and after his claimed period of disability. He also questioned Montaldo about his personal life, his physical health, his treatment for depression, and why he felt that he was disabled.

In regard to his employment history, Montaldo testified that he worked as a wine and spirits salesman for Charmer Industries, from 1980 to 1984 and from 1989 until February 2006; he worked for an importer during the interim. (R. at 30-31.) His employment ended when he was laid off following Charmer's consolidation with another company. He elaborated that he was terminated following a performance evaluation of the entire staff and not because of any physical or mental defects. (R. at 32-33.) Montaldo testified that he received unemployment benefits from approximately April 1, 2006 until September 2006. (R. at 32.) In response to questioning from the ALJ, Montaldo indicated that his period of disability started after his unemployment benefits had ended. (Id.)

Montaldo then described his efforts to work at three part-time jobs during his claimed period of disability. He testified that between August 2006 and January 2007 he spent 300 hours training at a dog grooming school, in order to obtain his certification.

(R. at 36-37.) He said that he sometimes spent the entire day at the school. (R. at 37.) Montaldo also testified that he worked part-time for a company called Testa Wines from May 2007 until December 2007. (R. at 33.) Montaldo worked on commission and earned $4900 during that time span. (Id.) He worked between 3.5 and 4.5 hours per day, two days a week. (Id.) Montaldo stated that he left this position with Testa because it provided him with "insufficient income." (R. at 34.) Montaldo testified that after selling wines for Testa, he got a license from the Taxi and Limousine Commission. (Id.) In the "Work History Report" that Montaldo submitted to the SSA, he indicated that he worked as a taxi driver 12 hours per day, two days per week from August 2008 through September 2008. (R. at 161, 164.)

Montaldo also addressed his then-current work as a salesperson for Cablevision. (R. at 35-36.) He testified that he would go to the homes of former customers to try and sell them new services. (R. at 36.) Montaldo also testified that he was earning a salary of $40,000 per year plus commissions and bonuses. (Id.)

The ALJ also questioned Montaldo about his psychiatric care and his depression. Montaldo testified that he initially entered therapy in September 2005 when he went to St. Vincent's for daily individual and group therapy. (R. at 40.) Montaldo also testified that he received treatment from therapists at Sound View Community Mental Health Center on a bi-monthly basis because of his depression. (Id.) Montaldo denied ever trying to hurt himself or others, and he testified that he had his brothers as a support system during his separation from his wife. (Id.)

In response to questioning from the ALJ, Montaldo stated that the reason why he felt disabled was his use of the antidepressants Cymbalta and Zoloft. (R. at 41-42.) He testified that he took Cymbalta for no more than a week and that his psychiatrist told him "to immediately stop taking it," when he reported that it made him feel suicidal.*fn2 (R. at 42.) Montaldo also testified that he later tried Zoloft, but that he had a "wors[e] experience" than with Cymbalta. (R. at 43.) He further testified that another antidepressant, Lexapro, did not help with his depression. (R. at 42.)

Montaldo testified that he distrusted the psychiatric procedure, and that it did not work for him. (R. at 43.) He recalled that he had five therapists and that they "play[ed] guessing games" trying to help him. (Id.) He explained that he got to the point where he felt that he needed to fix his problems on his own. (R. at 44.)

In addition, the ALJ questioned Montaldo about his physical health and Alport's disease. Montaldo described Alport's disease as a sex-linked genetic disease. (R. at 41.) He explained that it gave him nausea, vomiting, motion sickness, gout, and urinary tract infections. (Id.) He also said that he was told that he would be on dialysis by the time he was fifty-five, and that his mother and uncle died "from dialysis" in their fifties. (R. at 44.)

b. Vocational expert testimony

Annie Leopold, a vocational expert, testified at the hearing and classified Montaldo's past full and part-time work at the hearing using the Dictionary of Occupational Titles.*fn3

(R. at 47.) She testified that the classification code for his work as a taxi driver was 913.463-018, and that it was medium work with an SVP of "3 lower semi-skilled."*fn4 (Id.) The classification code for his position selling wine was 260.357-018, "sales representative wine and spirits," and she described it as light work with an SVP of "4 lower semi-skilled." (Id.) She also classified his then current work for Cablevision as 259.357-022, "sales representative," and described it as light work with an SVP of "3 lower semi-skilled." (R. at 48.)

2.Medical history

a. Mental health

i. Treating physicians

Montaldo began treatment at the Sound View Throgs-Neck Community Mental Health Center on March 6, 2006. (R. at 318.) He was referred to Sound View after visiting the emergency room of Jacobi Hospital to get medication. (R. at 318, 338.)

Montaldo was initially interviewed by Jessica Kemp, LMSW, and he stated that his chief complaints were that he had lost his job and was getting divorced from his wife of 25 years. (R. at 338.) Kemp observed that Montaldo had a depressed mood, grief, anxiousness, weight loss, and anger. She noted that Montaldo had a family history of post-traumatic stress disorder, depression, and anxiety. (R. at 341.)

On April 27, 2006, Dr. Koppes, M.D., conducted a psychiatric evaluation of Montaldo. (R. at 208-13). Montaldo reported that he had become depressed during the course of his marital breakup. He also reported that he was in a 2 week program at St. Vincent's Hospital in August 2005, and that he had been treated with Lexapro, Ambien, and Klonopin. (R. at 208, 210.) Montaldo reported taking these medications until February 2006, and then weaning himself off them over the course of a month. (R. at 208.) Montaldo denied having suicidal or homicidal ideation (R. at 208, 212) but Dr. Koppes reported that he had had "vague suicidal ideation" in August 2005 with no attempts at suicide (R. at 210). Montaldo also reported having a depressive episode eight years earlier. (R. at 213.) Dr. Koppes observed Montaldo as having a "well-groomed" appearance; a "cooperative" attitude; normal behavior and speech; a "logical and organized" thought process; "no delusions;" no audio or visual hallucinations; a "eurythmic mood;" and "intact" impulse control. (R. at 211.) Dr. Koppes also described Montaldo as being alert, with "good" attention, recent and remote memory, ability to abstract and generalize, and as having "average" intelligence with "fair" insight and judgment. (R. at 212.) Dr. Koppes diagnosed Montaldo with recurrent and severe major depressive disorder (without psychotic features). (R. at 213.) He ruled out bipolar disorder and diagnosed Montaldo with hypertension and a GAF of 60.*fn5 (R. at 213.)

On May 10, 2006, Kemp and Dr. Koppes completed a comprehensive treatment plan for Montaldo. (R. at 214-16.) They noted that Montaldo's principal diagnosis was unspecified depressive disorder, and that he had also been diagnosed with high cholesterol and gout. (R. at 214.) They also noted that his psychological stressors were his recent divorce, recent unemployment, and the welfare of his children. (Id.) They noted that his current GAF score was 70, and that his score over the past year had been 60. (Id.) Dr. Koppes and Kemp indicated that Montaldo had "good interpersonal skills," a "significant support system," the "ability to travel independently," the "ability to live independently," "good cognitive function," "good" physical condition, "insight into [his] problems," and significant education and work histories. (Id.) They identified his goals for treatment as 1) effectively coping with and reducing his depressive symptoms; and 2) reducing the "symptoms brought on by psychological stressors." (R. at 215.)

Montaldo's treatment plan was next reviewed by Kemp and Dr. Koppes on August 10, 2006. (R. at 219-20.) Dr. Koppes and Kemp ...

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