The opinion of the court was delivered by: Neal P. McCURN, Senior District Court Judge
MEMORANDUM - DECISION AND ORDER
This action was filed by plaintiff Jimmy B. Hill ("plaintiff") pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner ("Commissioner") of the Social Security Administration ("SSA"), who denied his application for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI"). Currently before the court is plaintiff's motion for judgment on the pleadings (Doc. No. 10) seeking reversal of the Commissioner's decision with a finding of disability, or in the alternative, an order of remand for a new hearing. Also before the court is the Commissioner's motion for judgment on the pleadings (Doc. No. 15) seeking affirmation of the Commissioner's findings. For the reasons set forth below, the Commissioner's motion is granted, and plaintiff's motion is denied.
I. Procedural History and Facts
Plaintiff protectively filed applications for social security
disability insurance benefits and supplemental security income on
March 26, 2008, alleging disability beginning December 1, 2007 due to
alleged impairments of: (1) depressive disorder; (2) back disorder;
(3) learning disorder; (4) posttraumatic stress disorder ("PTSD"); (5)
auditory and visual hallucinations; and (6) insomnia Tr.*fn1
17, 44-50, 64-71, 343-62. His applications were initially
denied on October 30, 2008. Tr. 31-32. On September 2, 2008, plaintiff
timely requested a hearing
with an administrative law judge. Tr. 33. Plaintiff appeared and
testified at a hearing held on August 6, 2009 in Syracuse, New York in
which Administrative Law Judge Thomas P. Tielens ("the ALJ") presided.
Tr. 32-57. Plaintiff was represented by non-attorney representative,
Angel Haynes of Central New York Legal Services. The ALJ issued an
unfavorable decision dated September 15, 2009. Tr. 12-22.
On November 2, 2009, plaintiff requested review of the ALJ decision. Tr. 9. On April 23, 2010, the Appeals Council denied plaintiff's request for review. Tr. 5-7. Upon the denial, this civil action was filed. Plaintiff retained his present counsel on July 8, 2010. Tr. 8. On April 29, 2011, a fully favorable decision was made upon an application filed on May 21, 2010, finding plaintiff disabled as of September 12, 2009. Therefore, the period at issue in this appeal is from December 1, 2007 to September 11, 2009.
The following facts are taken from plaintiff's statement of the case and are supplemented as the court deems necessary. The Commissioner incorporates plaintiff's facts in his brief, with the exception of any inferences or conclusions asserted by plaintiff, and provides additional facts from the record.
Having a date of birth of August 18, 1964, plaintiff was 42 years old on the alleged onset date of December 1, 2007. He has education through the sixth grade*fn2 and an employment history as a cashier and dishwasher. Tr. 46. In 2000 to 2003, plaintiff worked as a dishwasher/cashier eight hours a day, five days a week, and earned $8.60 an hour. Plaintiff was fired from that job for stealing stamps. Tr. 46, 147, 167, 349. Plaintiff also earned $4600 in 2006 and $5000 in 2007, but testified that he did not remember what he did for these earnings, but stated that he had worked for a temp agency. Tr. 349. His date last insured was December 31, 2010. Tr. 17, 49.
In his application for SSI, plaintiff claimed that he was disabled from depression, back pain, a learning disability and post-traumatic stress disorder ("PTSD"). Tr. 44-45; 64. Plaintiff indicated that he first used alcohol and marijuana at around fifteen years old and cocaine at around eighteen years old. Tr.
78. He testified that the longest he had abstained from alcohol and drugs was the eight months that he was incarcerated in 2005 for grand larceny. Tr. 147, 350, 356-58. Plaintiff testified that had previously been imprisoned in the 1980s for selling crack cocaine. Tr. 350. Plaintiff stated that he relapsed and last used crack or alcohol a few days prior to the hearing because he was upset that his cousin was shot in the neck. Tr. 351. He also testified that he used alcohol and drugs a few weeks prior to that incident. Tr. 351, 355-56. Plaintiff testified that his friends gave him the $700 to $800 a month he spent on drugs, which, upon questioning by the ALJ, he admitted was odd. Tr. 357-58.
On May 14, 2001, plaintiff treated at Community General Hospital emergency department for right-sided low back pain, and Karen E. Sebastian, M.D. noted previous back problems. Tr. 262. Medication of Flexeril, Motrin, and Tylenol with Codeine was prescribed, and plaintiff was put on bed rest for a few days. Tr. 262. Plaintiff was restricted from heavy lifting and frequent bending, and Dr. Sebastian provided a note for plaintiff's employer. Tr. 262. Plaintiff was admitted into Community General Hospital on June 5, 2001 for cervical spine and lumbosacral spine injuries and pain resulting from a motor vehicle accident two days prior. Tr. 268. Symptoms included worsening headache, neck pain, and lower back pain. Tr. 270. Low back had spasm of the left paravertebral muscles. Tr. 270. Diagnoses included: (1) rule out acute cervical spine or lumbar spine injuries; (2) rule out fractures; (3) rule out subluxation; and (4) rule out spondylolysis or spondylolisthesis. Tr. 270. An x-ray of the lumbosacral spine revealed degenerative disease at L3-4 and L4-5 and possible muscle spasm. Tr. 271, 274. Plaintiff was taken out of work until June 11, 2001 by Edmund Dorazio, M.D. and restricted from "heavy lifting" or bending. Tr. 271. On January 23, 2002, plaintiff treated at Community General Hospital emergency department for low back pain and was prescribed Motrin and Lortab. Tr. 278. Plaintiff was removed from work for two days and referred to Dr. Shik. Tr. 282. Plaintiff was treated on May 9, 2002 for acute lumbar sprain and lumbar sprain. Tr. 384. Plaintiff had muscle spasm in the lower lumbar spine, and was prescribed Flexeril and Lortab. Tr. 282. Plaintiff was restricted from heavy work. Tr. 289. Plaintiff was treated for an acute lumbar sprain on April 9, 2004 and had discomfort of the lower lumbar spine to the right of the midline. Tr. 291. Medication of Motrin and Flexeril was prescribed. Tr. 292. Plaintiff was restricted from "heavy" work. Tr. 296.
On July 13, 2004, Dorothy Lennon, M.D. of Syracuse Behavioral Health treated plaintiff for cocaine and marijuana dependence and administered an evaluation. Tr. 76-83. A GAF score was assessed at 40.*fn3 Tr. 83. An initial psychiatric evaluation was administered on January 21, 2005 by Mathew Joseph, M.D. of Crouse Hospital. Tr. 137-139. Plaintiff reported feeling anxious, having difficulty sleeping, and racing thoughts. Tr. 137. Plaintiff was assessed with: (1) insomnia NOS; (2) alcohol and cocaine dependence; and (3) anxiety disorder NOS. Tr. 139. A Bio-Psycho-Social Evaluation was administered on January 21, 2005 at Crouse Chemical Dependency Treatment Services. Tr. 104-115. Depressive symptoms were identified as depressed mood, insomnia, appetite change, weight gain, and social withdrawal, and judgment was poor. Tr. 110. GAF score was assessed at 38. Tr. 111. Education was reported by plaintiff to be limited to the ninth grade with special education services. Tr. 120. On February 21, 2005, plaintiff was discharged from Crouse Chemical Dependency Treatment Services following admission on January 21, 2005 and successfully completing the program. Tr. 98-100. Plaintiff had sleep difficulties in which he was prescribed Trazodone. Tr. 99. GAF score upon discharge was 40. Tr. 100.
Plaintiff was admitted to St. Joseph's Hospital Health Center Comprehensive Psychiatric Emergency Program ("CPEP") on January 16, 2008. Tr. 188. A prior CPEP admission was noted prior on December 27, 2007 for treatment of depressive disorder. Tr. 195. Plaintiff reported problems coping, suicidal ideation, and depressive symptoms including sleep and appetite problems, loss of energy, difficulty concentrating, and feelings of hopelessness, worthlessness, and excessive guilt. Tr. 192, 195. Mood was low and depressed, and affect was depressed and flat. Tr. 192, 195. Perceptual disturbance was noted for plaintiff talking to himself. Tr. 192. Plaintiff was diagnosed by David Frey, M.D. with depressive disorder. Tr. 193. Plaintiff reported that he did not have Medicaid and was awaiting a pending application. Tr. 301.
One day later, plaintiff felt better, tolerated his medication (Paxil) well, and was able to sleep without his medication (Trazodone). At that time, plaintiff was alert, oriented, pleasant, and cooperative. He was well dressed and groomed. His psychomotor activity was normal. He had linear and logical speech and thoughts. He smiled frequently and appropriately. He was not psychotic and his judgment was intact. His insight was partial ...