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Brenda Flagg v. Michael J. Astrue

September 6, 2012




A. Procedural History

On January 26, 2009, Plaintiff Brenda Flagg ("Plaintiff") filed an application for social security disability insurance benefits and supplemental security income under the Social Security Act, alleging that she has been unable to work since November 1, 2008 due to depression, posttraumatic stress disorder, and anxiety disorder. Administrative Transcript (Dkt. No. 9) ("Tr.") at 226-27, 251. The Commissioner initially denied the applications, and Plaintiff timely requested a rehearing before an Administrative Law Judge ("ALJ"). Id. at 90-91. Plaintiff, represented by counsel, appeared and testified at a hearing on July 23, 2010 in Syracuse, New York before ALJ Milagros Farnes. Id. ALJ Farnes issued a decision finding that Plaintiff was not disabled on August 12, 2010.Id.

The present action was commenced pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) following the denial of Plaintiff's requested review of the ALJ decision by the Appeals Council on March 25, 2011. Dkt. No. 1. Defendant filed an Answer on October 3, 2011. Dkt. No. 7. Plaintiff filed a supporting Brief on November 17, 2011. Dkt. No. 13 ("Plaintiff's Brief"). The Defendant filed a Brief in opposition on March 5, 2012. Dkt. No. 17 ("Defendant's Brief"). On May 2, 2012, the Honorable Gary Sharpe, Chief United States District Judge for the Northern District of New York, issued an order terminating the referral to Magistrate Judge Randolph Treece and directing the Court to decide this case directly without a Report and Recommendation. Dkt. No. 19.

B. Medical Evidence

1. Dr. Wike

The Record indicates that Dr. Jeffrey W. Wike of Family Medicare Group P.C. began treating Plaintiff for symptoms related to depression and anxiety on June 12, 2008. Tr. at 288. Dr. Wike opined that Plaintiff appeared healthy and well-developed. Id. at 288, 294, 308. In addition, on September 10, 2008, Dr. Wike stated that Plaintiff's speech was clear and fluent, her thought processes demonstrated coherence, logic, no indication of delusional thinking, homicidal ideation, or suicidal ideation, and her judgment was realistic and insight appropriate. Id. at 298. On February 19, 2009, Dr. Wike observed that Plaintiff continued to struggle with panic attacks and anxiety, although her language processing was intact and her thought processes demonstrated relevance and logic. Id. at 308.

2. Dr. Giaccio

Dr. Richard Giaccio, Plaintiff's treating psychiatrist, evaluated Plaintiff and found that her concentration was poor and that she had mental health conditions. Id. at 373, 402. Dr. Giaccio also filled out a medical source statement stating that Plaintiff was unable to meet competitive standards and could not satisfactorily perform the following activities independently, appropriately, effectively, and on a sustained basis in a regular work setting: remembering work-like procedures, maintaining attention for two hours; sustaining an ordinary routine without special supervision; working in coordination with or proximity to others without being unduly distracted; making simple work-related decisions; completing a normal workday and workweek without interruptions from psychologically based symptoms; performing at a consistent pace without an unreasonable number and length of rest periods; responding appropriately to changes in a routine work setting; and dealing with normal work stress. Id. at 404-05. In addition, he found that Plaintiff was unable to meet competitive standards in the following mental abilities and aptitudes needed to do particular types of jobs: interacting appropriately with the general public; traveling in an unfamiliar place; and using public transportation. Id. at 406. Finally, he found that Plaintiff had no useful ability to perform the following activities in a regular work setting: accepting instructions and responding appropriately to criticism from supervisors. Id. at 404-05.

3. Dr. Noia

On March 4, 2009, Dr. Dennis M. Noia, performed a consultative psychiatric examination of the Plaintiff. Id. at 282-85. He estimated her intellectual functioning to be in the borderline range, but ruled out a diagnosis of borderline intellectual functioning. Id. Dr. Noia opined that Plaintiff appeared to have difficulty dealing with stress and diagnosed panic disorder NOS. Id. He also found Plaintiff is able to count and perform simple calculations, has a coherent thought process, is not delusional, does not have disordered thinking, is capable of maintaining attention and concentration for tasks, and appears intellectually capable of managing money. Id.

Dr. Noia's medical source statement noted that Plaintiff appeared capable of understanding and following simple instructions and directions, performing simple and some complex tasks with supervision and independently for tasks, regularly attending to a routine and maintaining a schedule, making appropriate decisions, and relating to and interacting moderately well with others. Tr. at 284-85. Finally, he noted she had some difficulty dealing with stress. Id.

4. Dr. Mata

On April 22, 2009, the state agency medical reviewer, Dr. Mata, found that Plaintiff had borderline intellectual functioning. Id. at 334. Following his examination, Dr. Malta's summary conclusions indicated that Plaintiff had no marked limitations to her understanding and memory, sustained concentration and persistence, social interaction, or adaptation. Id. at 347-48. In the Functional Capacity Assessment, he wrote that Plaintiff has a borderline intellect with mildly impaired memory skills and that her attention and concentration is intact with good performance functioning. Id. at 349. It was his opinion that "claimant retains the functional capacity to perform the basic mental demands of the four general areas of functioning for unskilled work, in a low stress setting." Id. at 349.

5. Vocational Expert

Mr. Luther Pearsall testified as a vocational expert during the administrative hearing, stating that a person the same age as Plaintiff, with the same education, vocational profile, and exertional and non-exertional limitations could not perform Plaintiff's past work. Id. at 73-74. Mr. Pearsall then testified that he could only think of one job in the national economy -- surveillance monitor -- that existed in significant numbers that Plaintiff could perform. Id. at 75.

C. Plaintiff Testimony

On a typical day, Plaintiff testified that she dresses, bathes, grooms herself, prepares some food, and performs general cleaning and household chores like laundry. Id. at 284. She reads magazines and the newspaper, watches televison, and watches birds. Id. at 70-72. She has a driver's license and drives, but typically sticks to her local area and avoids public places that are unfamiliar or where there are large groups of people. Id. at 64, 71-72.

Plaintiff testifies that she has a learning disability but can still read and write. Tr. at 63. She dropped out of school after completing ninth-grade, received special education, and also continues to have difficulty reading, writing, spelling, and doing math.Id. Plaintiff worked at Kentucky Fried Chicken for five years where she prepared food and worked in the drive through. Tr. at 66. She was later employed at Family Dollar where she worked as a stock person and cashier. Id. at 65, 73. Finally, she worked at McDonald's where she did the dishes and made breakfast. Id. at 64.


A court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Instead, a reviewing court will only reverse the Commissioner's determination if the correct legal standards were not applied or if the determination was not supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) ("Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles."); see Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979).

The substantial evidence standard requires evidence amounting to "more than a mere scintilla," and has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). If the evidence is deemed susceptible to more than one rational interpretation, then the Commissioner's conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982). If supported by substantial evidence, the Commissioner's finding must be sustained "even where substantial evidence may support the plaintiff's position and despite that the court's independent analysis of the evidence may differ from the [Commissioner's]." Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). That is, the Court must afford the Commissioner's determination considerable deference, and may not substitute "its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review." Valente v. Sec'y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).

The Commissioner has established a five-step sequential evaluation process to determine whether an individual is disabled as defined under the Social Security Act.*fn1 See 20 C.F.R. ยงยง 416.920, 404.1520. The United States Supreme Court recognized the validity of this analysis in Bowen v. Yuckert, and the five-step process remains the proper approach for analyzing whether a claimant is disabled. 482 U.S. 137, 140-42 (1987). While the claimant has the burden of proof as to the first four steps, the Commissioner has the burden of proof on the fifth and final step. See Bowen, 482 U.S. at 146 n.5; Ferraris v. Heckler, 728 F.2d 582 (2d Cir. 1984). The final step of the inquiry is, in turn, divided into two parts. First, the Commissioner must assess the claimant's job qualifications by considering his or her physical ability, age, education, and work experience. Second, the Commissioner must determine ...

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