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Kelly Thompson v. Michael J. Astrue

May 30, 2012


The opinion of the court was delivered by: Charles J. Siragusa United States District Judge



This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security ("Commissioner" or "Defendant"), denying the application of Kelly Thompson ("Plaintiff") for Social Security disability benefits. Now before the Court is Plaintiff's motion [#10] for judgment on the pleadings and Defendant's cross-motion [#12] for judgment on the pleadings.

Plaintiff maintains that the Administrative Law Judge ("ALJ") failed to incorporate certain factual findings into the residual functional capacity ("RFC") assessment.

Specifically, at step three of the five-step sequential analysis, the ALJ stated that Plaintiff was "moderately" limited with regard to concentration, persistence, and pace, but she did not include that limitation in the RFC assessment. Plaintiff further argues that the ALJ failed to properly evaluate and weigh medical evidence concerning Plaintiff's non-exertional mental impairments. Lastly, Plaintiff maintains that the ALJ failed to properly evaluate her credibility. On this point, Plaintiff contends that the ALJ selectively went through the record and "cherry picked" information that was harmful to Plaintiff's claim, but failed to include any of the information that supported Plaintiff's claim.

Plaintiff's application [#10] is granted, and Defendant's cross-motion [#12] is denied.


On October 12, 2010, Plaintiff commenced this action. On August 26, 2011, Plaintiff filed the subject motion [#10] for judgment on the pleadings. On September 15, 2011, Defendant filed the subject cross-motion [#12] for judgment on the pleadings. On April 19, 2012, counsel for the parties appeared before the undersigned for oral argument.


Plaintiff was age 26 at the time of the hearing. (27)*fn1 . Her level of education is unclear. In that regard, at the hearing before the ALJ, Plaintiff indicated that she dropped out of high school after completing the eleventh grade. (27) However, elsewhere in the record Plaintiff reportedly indicated that she "went to the 10th grade" (390), while at another point, she reportedly indicated that she completed the 12th grade but "could not pass her [New York State] Regent's exams." (314) Plaintiff stated that she earned her GED (27), but needed someone to read the GED exam to her, because she does not remember what she reads, but does remember when someone else reads to her. (28)

On December 14, 2009, Plaintiff told the ALJ that since earning her GED, she had not taken any further "classes or courses" and had not earned any "certificates."

(27) However, in September 2009 she told her doctor that she was attending Corning Community College to become a counselor. (376) She also previously told the Social Security Administration that she completed training as a "certified nurse's assistant" in 2002. (139)

Plaintiff indicated that she has worked in the following jobs: "counter worker" in a pizza shop and fast food restaurant; dishwasher in an ice cream shop; hostess in a restaurant; nurse's aide in a nursing home; and home health aide. (135) Her longest period of employment was approximately two years, working as a nurse's aide. Id.

In or about 2007, Plaintiff indicated that she stopped working because, "I always got fired due to my depression[.] I didn't want to go to work. . . . I didn't feel like getting out of bed. I was written up three times. I argued with my boss. I got fired." (134) Plaintiff further stated: "If I don't have my medication I get mad really easy, some days I am too depressed to get out of bed to go to work. I feel like people are after me. My mind wanders and I have racing thoughts so I can't concentrate on what I am supposed to be doing." (134) (emphasis added) On another occasion, Plaintiff indicated, "It is very hard to hold a job[.] I get depressed and isolated and don't want to be around people." (152) Plaintiff further stated: "[W]hen I get depressed all I want to do is sleep, and I can't function. Like I don't want to leave my house. I isolate, and I would call into work because I didn't want to leave my house." (31-32) Plaintiff also indicated that she would react inappropriately to co-workers during "manic" episodes: "I can't like listen to people. I could be nice to you one minute and then the next minute I'll be mean." (31)

Plaintiff has a drug-related felony conviction. (108, 220, 222) ACTIVITIES OF DAILY LIVING

Plaintiff has no physical limitations, but maintains that her activities of daily living ("ADLs") are limited by her non-exertional impairments, especially depression. In that regard, Plaintiff stated that she usually becomes depressed once per month, for about a week. (35-36) Sometimes she only becomes depressed every two months. Id. Plaintiff indicated that when she is depressed, she wants to "isolate," that is, be alone, and sleep (31-32), and that she cannot concentrate. (35) Plaintiff further stated that depression is her biggest obstacle to working, and that she has been fired from several jobs during episodes of depression. (32, 36)

Plaintiff also claimed to experience manic phases about every six months, usually lasting about three days. (30) Plaintiff stated that during her manic episodes, she cannot listen to people, and, as indicated above, can be nice to people one minute and mean the next. (30-31)

Plaintiff indicated that she can perform ordinary childcare and household chores as long as she does not become depressed and feel the need to "isolate" herself. (See, e.g., 32, 156) Plaintiff's mother usually helps her take care of her children about five days per week even when Plaintiff is feeling well, and helps more when Plaintiff feels depressed. (32-33; 214) Plaintiff indicated that her mother usually does the shopping and laundry. (38-39)

At the hearing, Plaintiff claimed to have no friends, to go "nowhere," and to "just sit in the house," even when she is not feeling depressed. (33) However, Plaintiff has a long-term boyfriend, who is the father of two of her children, although they are sometimes abusive toward each other. (222, 286) Furthermore, upon her release from the hospital in July 2007, Plaintiff indicated that she had "social support" from "family, friends." (305) Plaintiff also reported that "she gets along well with friends and family." (317) Moreover, on May 21, 2007, Plaintiff reported that some of her "friends" had used her prescription drugs while she was in jail on a parole violation. (220) Additionally, Plaintiff reported that she has a supportive relationship with her "best friend's mother." (240)


Plaintiff's medical history was summarized in the parties' submissions and need not be repeated here in its entirety. It is sufficient for purposes of this Decision and Order to note the following facts.

On January 8, 1997, when Plaintiff was in Eighth Grade, school documents indicate that she exhibited aggression, anxiety, depression, delinquency, "social problems," and inattention. (361) Teachers observed that Plaintiff had a quick temper and could not calm herself down when she became angry. (364-365) When tested for intellectual ability, Plaintiff scored in the low average range. (363) Plaintiff performed well with regard to academic achievement and written language skills. (364)

On December 13, 1999, Plaintiff was seen by psychiatrist Kyung Chun, M.D. ("Chun"), of Family Services of Chemung County ("Family Services"). Chun conducted a psychiatric evaluation. (253-256). Plaintiff was sixteen years old, had one child and was in a program for homeless adolescents. Plaintiff indicated that her parents, who were separated, were neglectful and abusive. Plaintiff was enrolled in a BOCES program for training as a dental assistant. Plaintiff described being stressed from attempting to simultaneously care for her child by herself and pursue her education. Plaintiff indicated that she felt depressed, angry and irritable. (253) She also reported having difficulty concentrating in her classes. Id. Plaintiff claimed to have difficulty falling asleep, and to experience feelings of hopelessness and worthlessness. (254) Chun observed that Plaintiff exhibited average intellectual function, and that she was able to concentrate during the examination. (255) Chun's diagnosis was depressive disorder not otherwise specified and post-traumatic stress disorder. Id. Chun prescribed Prozac and counseling. Id.

On January 12, 2000, Chun examined Plaintiff, who was complaining of having difficulty concentrating at school. (251) On February 11, 2000, Chun reported that Plaintiff was attending school and keeping her feelings under control. (252) Chun prescribed Prozac, Trazodone and Klonopin. Id. Plaintiff indicated that her depression was somewhat improved. Id. On May 5, 2000, Chun reported that Plaintiff had been required to stop taking her usual medication in connection with surgery, and was experiencing mood swings. (250) Plaintiff reported, though, that her anxiety was under control. Chun prescribed Prozac and Trazodone, and recommended that Plaintiff come for psychotherapy. (250) On October 2, 2000, Plaintiff told Chun that she had run out of medication, and was feeling depressed and unable to concentrate. (249) Chun prescribed Prozac and Trazodone, and recommended that Plaintiff obtain counseling at Family Services. Id.

According to the record, Plaintiff was seen at Chemung County Mental Health Clinic on May 5, 2005. (238-241) At that time Plaintiff was employed, and was complaining of depression, anxiety and poor sleep. (239) Plaintiff also reported having "problems with substance abuse," and indicated that her childrens' father was in jail. (238) Plaintiff denied any suicidal ideation. (239) Plaintiff was diagnosed with depressive disorder not otherwise specified. (241)

Approximately two years later, on March 29, 2007, Lori Seymour, MSW ("Seymour"), examined Plaintiff at the Chemung County Mental Health Clinic. Plaintiff complained of depression, anxiety and mood swings. (227) Plaintiff stated that she had difficulty sleeping and experienced flashbacks, nightmares and suicidal ideation. (232) Seymour thought that Plaintiff's risk of suicide was "low." (235) Seymour observed that Plaintiff's appearance, behavior, thoughts, intelligence, insight, judgment, attention span, memory, mood and ...

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