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Sabrina Briscoe v. Michael J. Astrue

September 25, 2012


The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge


Plaintiff Sabrina Briscoe brings this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security denying her claim for disability insurance benefits under the Social Security Act. The parties consented to this matter being decided by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). The Commissioner and Briscoe have moved separately for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). For the reasons stated below, the Commissioner's motion is denied and Briscoe's motion is granted in part. The case is remanded for further proceedings.

I. BACKGROUND A. Administrative Proceedings

Briscoe applied for social security disability and social security insurance benefits on September 25, 2008, see Administrative Record (annexed to Notice of Filing of Administrative Record, filed Sept. 20, 2011 (Docket # 8)) ("R.") 28, alleging that she became disabled on July 6, 2008, id. Briscoe is insured for disability benefits through December 31, 2013. Id. Briscoe was most recently employed as a paint salesperson at Home Depot and had previously worked both as a receptionist at H&R Block and as a cleaning porter at Madison Square Garden. R. 49--51.

Following a hearing before an Administrative Law Judge ("ALJ"), Briscoe's application was denied on April 9, 2010. See R. 28--39. Briscoe appealed the ALJ's ruling. See R. 21--23. On March 29, 2011, the Appeals Council denied Briscoe's request for review. See R. 1--4.

B. Procedural History

On May 23, 2011, Briscoe filed the instant action seeking review of the ALJ's decision. See Complaint, filed May 23, 2011 (Docket # 11). On October 21, 2011, the Commissioner moved for judgment on the pleadings. See Notice of Motion, filed Oct. 21, 2011 (Docket # 9); Memorandum of Law in Support of the Commissioner's Motion for Judgment on the Pleadings, filed Oct. 21, 2011 (Docket # 10). Briscoe responded with a cross-motion for judgment on the pleadings. See Motion for Judgment on the Pleadings, filed Nov. 21, 2011 (Docket # 12); Plaintiff's Memorandum of Law in Support of Her Motion for Judgment on the Pleadings, filed Nov. 21, 2011 (Docket # 13) ("Pl. Mem."). The Commissioner submitted a reply and opposition to the plaintiff's motion. See Memorandum of Law in Opposition to Plaintiff's Motion for Judgment on the Pleadings and in Further Support of the Commissioner's Motion for Judgment on the Pleadings, filed Dec. 19, 2011 (Docket # 16) ("Reply").

C. The Administrative Record

1. Medical Records

a. Background

Briscoe was born on July 27, 1964. R. 246. Briscoe broke her femur and ankle in 1992 after being pushed out of a fifth-floor window. R. 307--08, 310, 312--14, 492, 603. The fracture was surgically repaired. R. 603.

b. Federation Employment Guidance Service On May 30, 2008, Briscoe was evaluated at the Federation Employment Guidance Service ("F.E.G.S.") by Charlene Jackson, a social worker. See R. 300--21. Briscoe reported to Jackson that she felt depressed. R. 307. Briscoe appeared "cooperative, friendly, and well groomed" to Jackson. Id. Briscoe did not evidence any suicidal behavior. R. 306. Briscoe indicated that she is able to perform various household chores independently, including cooking and making beds, see id., and denied having difficulty concentrating or having had a loss of energy or appetite within the preceding two weeks, see R. 305. Briscoe reported that she had experienced difficulty sleeping and "[l]ittle interest or pleasure in doing things" on several days during the preceding two weeks. See R. 305. Jackson attributed a "PHQ-9"*fn1 score to Briscoe of 2, R. 306, indicating "[n]ormal or minimal depressive symptoms," R. 320.

Dr. Michael Ward also examined Briscoe at F.E.G.S. See R. 309--21. Dr. Ward reported normal examination findings except for elevated blood pressure and EKG results suggestive of septal infarct. See R. 309--13. Dr. Ward referred Briscoe to the emergency room, but she declined to go. R. 313. Dr. Ward also noted that Briscoe had a depressed mood and pain in her left ankle and lower extremity. R. 309--13.

On June 4, 2008, Dr. Jorge Kirschtein, a psychiatrist, evaluated Briscoe at F.E.G.S. See R. 322--28. Dr. Kirschtein indicated that Briscoe reported feeling depressed and helpless, being socially isolated, and having poor concentration, low energy, and disturbed sleep. R. 324. Briscoe denied suicidal ideation, manic episodes, hallucinations, and delusions. Id. Briscoe reported panic attacks relating to being pushed out of a window. Id. Dr. Kirschtein observed that Briscoe had logical thought, normal thought content and speech, and intact attention, orientation, and cognition. R. 324--25. Dr. Kirschtein described Briscoe as being cooperative, restless, and neat in appearance during the examination. R. 324. Dr. Kirschtein determined that Briscoe had "moderate" functional impairments in the categories of ability to follow work rules, accept supervision, deal with the public, maintain attention, relate to co-workers, and adapt to change. R. 326. He determined that Briscoe had a "severe" functional impairment in the categories of ability to adapt to stressful situations. Id. He made a further note that Briscoe had a "severe impairment in persistence." Id. Dr. Kirschtein assessed Briscoe as having a global assessment of functioning ("GAF")*fn2 score of 50, id., which indicates serious symptoms or any serious impairment in social, occupational, or school functioning. DSM at 34. Dr. Kirschtein diagnosed Briscoe as having untreated posttraumatic stress disorder ("PTSD") "with generalized anxiety" and dysthymic disorder.*fn3 R. 326--27.

c. Harlem Hospital Center

On June 1, 2008, Briscoe entered the Harlem Hospital Center with reports of chest pains. See R. 581--92. Briscoe reported that she had seen a "welfare doctor" the preceding week who told her that an electrocardiogram ("EKG") indicated that she had sustained a heart attack. R. 582. She stated that the "welfare doctor" advised her to go to Bronx Lebanon Hospital to have another EKG performed. R. 582. Briscoe went to Harlem Hospital instead and was examined by Dr. Aneliese Keller, M.D., who diagnosed Briscoe with hypertension. R. 582--83.

Briscoe was treated as an outpatient at the Harlem Hospital clinic from July 2008 through December 2009. R. 443--82, 565--664. On July 29, 2008, Briscoe visited Harlem Hospital and requested an excuse from work. R. 466--68. Briscoe was referred to see Dr. Nely S. Recano regarding her obesity and issues with her heart. R. 467, 579. Briscoe was reported as having no anhedonia or depressed mood at the time of her visit. R. 468, 580.

On August 4, 2008, Briscoe returned to Harlem Hospital requesting an excuse from work. See R. 462--65, 574--77. Briscoe denied experiencing chest pains, fatigue, depressed mood, nervousness, or sleep disturbance. R. 462--63, 574--75. Briscoe was alert, oriented, had normal affect and did not exhibit a thought disorder. R. 463, 575.

On August 11, 2008, Dr. Recano evaluated Briscoe at Harlem Hospital. See R. 459--61. Briscoe reported that she feared that someone is going to harm her and that she felt pain in her hip, leg, and ankle. R. 459. Briscoe denied having sensory or motor deficits. Id. Briscoe denied anhedonia and depressed mood. R. 461. Briscoe was alert, oriented, had normal affect, and exhibited no signs of thought disorder. R. 459. Briscoe was obese, weighing 235 pounds and having a blood pressure of 147/88, but Dr. Recano noted she was in no acute distress. Id.

Briscoe saw Dr. Recano again on September 5, 2008. See R. 456--58. Briscoe complained of "on and off" leg pain, which was described as being at a level of zero at the time of the examination. R. 456. Briscoe reported experiencing flashbacks of falling out of window and having unprovoked fears and anxiety as a result. Id. Briscoe was not in acute distress. Id. Briscoe was alert, oriented, had normal affect, exhibited no signs of thought disorder, and denied experiencing anhedonia or depressed mood. R. 456--57. Briscoe's extremities did not show any obvious swelling or tenderness. Id. Dr. Recano advised weight reduction, discussed dieting and exercise with Briscoe, and referred her to a dietitian to deal with her obesity. R. 457. Dr. Recano also referred her to a psychiatrist for PTSD. R. 457.

Briscoe saw a dietician at Harlem Hospital on February 12, 2009. See R. 590--91. The dietician determined that Briscoe is obese, as she weighed 245 pounds and was five feet, four inches tall at the time of the examination. R. 591. The dietician explained to Briscoe the complications associated with obesity and prescribed a reducing diet to Briscoe. Id.

Briscoe was examined by Dr. Recano on September 17, 2009. R. 605. Briscoe had not been adhering to her diet and weighed 252 pounds on the date of the exam. Id. Dr. Recano assessed Briscoe to be alert, oriented, with normal affect and with no evidence of thought disorder. R. 606. Dr. Recano noted Briscoe had a normal back and gait and her extremities did not have cyanosis, clubbing, or edema. Id. Briscoe had hypertension, which was controlled but could be better. R. 607. Briscoe was wheezing mildly, but had no history of asthma. R. 606--07. Dr. Recano assessed a PHQ-9 score of 0. R. 608.

On October 13, 2009, Briscoe saw Dr. Jacquelin Emmanuel, M.D. R. 603. Briscoe reported pain in her left hip and ankle at a level of five on a scale of five to ten. Id. Briscoe limped and was tender on range of motion of the left hip and ankle and on palpation of the left tronchanteric area. Id. Briscoe had good range of motion of the left ankle. Id. An x-ray revealed a healed fracture of the distal left tibia with degenerative joint disorder. Id. Dr. Emmanuel diagnosed post-traumatic arthritis in Briscoe's left ankle and bursitis at the left femoral fracture, and prescribed Tramadol medication for pain. Id.

On November 6, 2009, Briscoe visited Harlem Hospital again. See R. 597--99. She was not in any acute distress at the time of the visit. R. 597. She was alert, oriented, with normal effect and had no evidence of a thought disorder. Id. She denied having a depressed mood, nervousness, sleep disturbances, and sensory or motor deficits. Id. She had normal tone, sensation, gait, and motor strength. R. 598. She was diagnosed with hypertension. Id.

On December 30, 2009, Briscoe was seen at Harlem Hospital again by Dr. Recano. See R. 617--19. Briscoe was not at the goal with respect to her hypertension, and she was "very strongly" advised to lose weight. R. 618. Plaintiff was assessed with a PHQ-9 score of 0. R. 619.

d. Dr. Virginia Contreras

On August 8, 2008, Briscoe began psychiatric treatment with Dr. Virginia Contreras, M.D. R. 526. Dr. Contreras treated Briscoe from August 2008 through February 2012. See R. 332--34, 483--84, 521--63. After an evaluation of Briscoe on August 12, 2008, Dr. Contreras diagnosed Briscoe with PTSD and major depressive disorder. R. 484, 562. Briscoe did not have any suicidal thoughts. R. 483. Briscoe's affect was full-ranging and her speech was slightly pressured. R. 561. Dr. Contreras prescribed the medications Ambien and Paxil to Briscoe. R. 484. In a report completed in connection with Briscoe's application for public benefits, Dr. Contreras indicated that Briscoe experienced numbing, nightmares, feelings of doom, flashbacks, avoidance, depressed mood, decreased energy, decreased concentration, decreased sleep, and decreased appetite. R. 422. Dr. Contreras indicated in the report that Briscoe was unable to work for at least 12 months. R. 423.

On September 19, 2008, Briscoe visited Dr. Contreras and reported that she felt depressed. R. 484. She indicated that she was only occasionally taking her prescribed medications, having taken only five pills total, but that she was getting good results when she took Ambien. Id. Dr. Contreras encouraged her to continue to take the medication. Id.

On October 21, 2008, Briscoe reported that her sister had died, but that she was eating well and sleeping well. R. 523. She had been taking her medications daily with good results. Id.

On October 30, 2008, Dr. Contreras completed a report of Briscoe in which she stated that Briscoe has major depression and PTSD. R. 534. She evaluated Briscoe's GAF at 55. Id. Dr. Contreras concluded that the functional impairment that would restrict Briscoe from performing work-related activities was Briscoe's inability to interact with others as evidenced by her depressed mood. Id. Dr. Contreras reported that at her most recent exam of Briscoe, she found Briscoe to be depressed, with constricted affect, decreased appetite, and decreased sleep. Id. She noted that Briscoe had adequate speech and was not homicidal, suicidal, or psychotic. Id. Dr. Contreras recommended that Briscoe return to work on February 12, 2009. R. 535.

On November 21, 2008, Briscoe reported that she was feeling well as a result of taking Paxil medication. R. 539. On January 26, 2009, Briscoe indicated that she had experienced some grief from the anniversary of her mother's death. Id. On March 31, 2009, Briscoe reported that she was taking Paxil and that she felt "paranoid." R. 540. On May 26, 2009, Dr. Contreras reported that Briscoe was ...

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