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Tomasa M. Santana, Memorandum v. Michael J. Astrue

March 25, 2013


The opinion of the court was delivered by: Cogan, District Judge.


Plaintiff brings this action pursuant to the Social Securities Act ("SSA"), 42 U.S.C. §405(g), seeking review of the Commissioner of Social Security's ("Commissioner") denial of her claim for disability benefits under Title II of the SSA and remand of this action solely for the calculation of disability benefits or further proceedings. The parties have each filed a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, defendant's motion is denied, plaintiff's motion is granted in part and denied in part, and the case is remanded to the ALJ for further proceedings in accordance with this decision.


I. Procedural Background

Plaintiff filed a Title II application for Social Security Disability benefits in 2006, alleging that she became disabled on March 5, 2002 after injuring herself at her place of employment.*fn1 Plaintiff's Title II application was denied based on a determination that plaintiff was not disabled on or before December 31, 2005, when her insurance status expired. A timely request for a hearing was filed. Plaintiff appeared pro se with an interpreter before an Administrative Law Judge. The ALJ issued an unfavorable decision after finding that plaintiff was not disabled within the meaning of the SSA.

Plaintiff retained council and requested review of the ALJ's decision by the Appeals Council. On August 14, 2009, the Appeals Council issued an order remanding the case back to the ALJ for further proceedings and permitted plaintiff to produce a 2003 MRI of her knee. On November 30, 2009, the ALJ held a second hearing and plaintiff appeared with her attorney and an interpreter. By Decision dated January 28, 2010, the ALJ found that plaintiff was not disabled from March 5, 2002, the alleged onset date, through December 31, 2005, the date plaintiff was last insured, and denied her Title II Claim.

Plaintiff appealed the ALJ's Decision. The Appeals Council issued a Notice of Appeals Council Action on October 27, 2011, which advised plaintiff that it intended to confirm the ALJ's decision and afforded her the opportunity to submit any new and material evidence in support of her claim. Plaintiff submitted a letter dated November 9, 2011, including the reports of psychiatrists Drs. Robotti and Sultan. On December 20, 2011, the Appeals Council affirmed the ALJ's decision. On February 17, 2012, plaintiff filed a complaint seeking this Court's review of the final decision of the Commissioner.

II. Medical and Vocational Evidence

Plaintiff was born on December 29, 1959 in the Dominican Republic. She immigrated to the United States in 1995 and is currently a resident alien. She has never attended school, does not speak English, and can speak, but not write, Spanish. She has four children, one of whom died in 2000. Plaintiff previously worked as a nanny, a fabric cutter/clothing sorter, and as a cook at a restaurant. On March 5, 2002, while working as a cook, plaintiff injured her back after picking up a heavy box which weighed more than the usual 20-30 pounds she was required to lift at her workplace. She went to the Emergency Room at St. Luke's-Roosevelt Hospital Center that day for treatment. She has not worked since March 5, 2002.

On April 8, 2002, plaintiff went to the Orthopedic Clinic at St. Luke's complaining of back pain and immobility in her legs. The doctor on call treated her with codeine and discharged her with prescriptions for Flexeril and Vicodin. Three days later plaintiff returned to the Orthopedic Clinic at St. Luke's. A physical examination revealed spasm, decreased range of motion in her entire lumbar spine, a herniated disk, bilateral partial loss of sensation in the upper extremities, and a compression of the lumbar nerve roots. A doctor prescribed a pain reliever and physical therapy. After an additional visit where plaintiff's motor testing revealed full strength throughout, the physician at the Orthopedic Clinic directed plaintiff to take non-steroidal anti-inflammatories and to start physical therapy. Plaintiff returned to the clinic in late May 2002 where a doctor advised her that she could return to work as tolerated, but she should avoid heavy lifting. She could ambulate within normal limits and could toe heel walk with some difficulty.

Two to three months after her work injury, plaintiff began experiencing strong pain in her right knee. Due to her lower back and knee pain, plaintiff could not sit for more than one to two hours, she needed to stand up or lie down for three hour intervals throughout the day, and had difficulty sleeping. In September 2002, plaintiff visited the Orthopedic Clinic once again. A physical exam revealed that plaintiff had full strength but had a diffuse annular bulge at her L5/S1 disk level without stenosis and mild degenerative joint disease. Again, the doctor on call advised plaintiff to attend physical therapy and to continue Celebrex.

On September 18, 2002, plaintiff began treatment with Dr. Andrew Brown at Downtown Physical Medicine and Rehabilitation for her lower back pain. Dr. Brown's report noted that her mobility to get on and off the exam table was moderately to maximally impaired and she was able to dress and undress slowly and with pain. Additionally, Dr. Brown noted that plaintiff complained of lower back pain radiating to plaintiff's feet with numbness, as well as problems falling asleep and staying asleep due to the pain. Dr. Brown's diagnosis was traumatic lumbosacral pain syndrome with radiculitis. His notes for every single visit from November 27, 2002 through July 30, 2004 indicate that plaintiff was "totally disabled." Dr. Brown prescribed different pain medications throughout this time to help ease plaintiff's back pain.

On October 6, 2003, plaintiff went to St. Luke's ER complaining of severe abdominal pain. A doctor determined she was suffering from gallstones. Six months later, plaintiff arrived at William F. Ryan Community Health Center ("Ryan Center") complaining of upper abdominal pain and informed the doctor that she was scheduled for gallbladder surgery. Four months later, plaintiff arrived at the Ryan Center complaining of shortness of breath (dyspnea) after walking four to five blocks.

On August 27, 2004, plaintiff was evaluated by Dr. Liana Dao at the Ryan Center who concluded that plaintiff's pulmonary function suggested obstruction and plaintiff's stress echocardiogram was abnormal. Although her LVEF*fn2 was normal, there was trivial tricuspid regurgitation.*fn3 Because of plaintiff's chest pains, she underwent outpatient cardiac catheterization on October 5, 2004. One month later, plaintiff presented again to St. Luke's ER with complaints of chest pain and shortness of breath. Her blood pressure was normal, but she was admitted to the medical floor for evaluation. Plaintiff's blood pressure steadily decreased, and she was discharged two days later.

Dr. Dao continued to examine plaintiff periodically through March 20, 2005, during which time Dr. Dao diagnosed plaintiff with stable hypertension, chronic back pain, and angina. Dr. Dao noted in several reports that plaintiff suffered from chronic low back pain and that plaintiff complained of right knee pain, dizziness and headaches. In a medical report dated March 30, 2006, Dr. Dao noted that plaintiff was depressed with anxiety and had extreme sleep decline to 1-2 hours per night.

Plaintiff's knee pain increased in early December 2005 and she returned to St. Luke's Orthopedic Clinic. Both knees exhibited full range of motion with minimal crepitus in the right knee, and mild medial and lateral joint tenderness. A 2006 MRI taken at St. Luke's Hospital showed a horizontal tear to the medial meniscus, a probable tear of the medial most aspect of the anterior horn of the lateral meniscus, and degenerative changes of the articular cartilage overlying the patella. A 2008 MRI of plaintiff's knee showed no evidence of tears of the medial or lateral menisci.*fn4

Plaintiff began treatment with Dr. Daniel Boccardo, of MB Medical Associates, in May 2006 and continued through May 2010. Plaintiff initially saw Dr. Boccardo regarding her chest pain and depression. EKG and cardiac stress tests were both within normal limits. On June 3, 2006, Dr. Boccardo noted that plaintiff's diagnoses were controlled hypertension, coleithiasis (gallstones), sciatica with a herniated disk, depression, and coronary artery disease. Two months later, plaintiff had successful gallbladder surgery.

On November 2, 2006, Dr. Boccardo completed a functional capacity form for plaintiff. He assessed that plaintiff's ability to lift and carry was limited and checked off "frequently (up to 2/3 of a work day)", but did not indicate how many pounds she could lift and carry. He also noted that her ability to stand and/or walk was limited to less than two hours per day, and that her ability to sit was limited and checked "up to six hours per day." He noted that her ability to push and/or pull was limited. Additionally, he noted that plaintiff had constant low back pain, suffered from a permanent disability due to depression, and was unable to walk properly. Dr. Boccardo's assessments regarding plaintiff's depression are described in greater detail below.

III. Depression Evidence

Plaintiff testified at the hearing that her daughter died in 2000, and her husband died a short time later, also in 2000. She testified that after these two deaths, she began having depression related issues that affected her ability to work. Plaintiff also testified that she began having trouble sleeping, and that for five nights of the week she only slept one to two hours per night. She also testified that she cries often and hears voices. In support of her depression claim, plaintiff submitted the reports and records of Dr. Boccardo and two psychiatrists. Treatment records of Dr. Boccardo from August 21, 2006 through August 19, 2009 indicate a diagnosis for depression and depressive disorder.

In June 2006, plaintiff saw Dr. Boccardo complaining that she felt very depressed. Dr. Boccardo checked "Negative" for Psychiatric under Review of Systems on plaintiff's medical form, yet proceeded to diagnose her with "depressive disorder (311)" and ordered a psychiatric consult. Two months later, Dr. Boccardo again checked "Negative" for Psychiatric Review of Systems, and diagnosed plaintiff with depressive disorder and ordered a psychiatric consult. In June 2007, Dr. Boccardo made the same findings, but noted that plaintiff "did not see psychiatrist due to lack of coverage." Plaintiff was also seen in mid-2006 by Dr. Melamedoff, a doctor in Dr. Boccardo's office, who diagnosed her with psychogenic paranoid psychosis.

In his 2007 functional capacity report, Dr. Boccardo's checked "normal" for plaintiff's ability to understand, remember, and carryout instructions, as well as her ability to respond appropriately to co-workers and to supervision. However, he checked "abnormal" in the areas of sustaining adequate attendance and meeting quality standards and production norms. In the space provided for an explanation, Dr. Boccardo noted "Depressive Disorder."

In January 2009, plaintiff began attending the Corona Elmhurst Guidance Center, because her insurance began to cover psychiatric care. She received psychotherapy sessions once a week and psychiatric sessions once a month. According to records submitted by the Corona Clinic, from January 12, 2009 until October 20, 2009, plaintiff attended 33 sessions at the Corona Clinic with psychiatrists Drs. Sady Sultan and Flavia Robotti, or social worker Jennifer Osorio.

On June 22, 2009, after plaintiff had participated in 20 therapy or psychiatry sessions at the Corona Clinic, Dr. Robotti completed a psychiatric report in which she diagnosed plaintiff with major depressive disorder with psychotic features. Dr. Robotti opined that plaintiff's illness commenced in July 2000, soon after the deaths of plaintiff's husband and daughter, and that the depression worsened when plaintiff was injured at work. In her report, the doctor noted that plaintiff had heard auditory hallucinations and paranoid ideations since July 2000 and that plaintiff's "GAF" score was 55 when her illness began.*fn5

Plaintiff told Dr. Robotti that she lost communication with family and friends when she became depressed, and that she had difficulty with personal hygiene and maintaining her home. Finally, Dr. Robotti indicated that plaintiff had marked limitations in performing the activities of daily living, social functioning, and in concentration, persistence, and pace. Dr. Robotti further found that plaintiff also had extreme limitations in: response to ordinary work pressure; ability to understand, remember, and carry out instructions; responding appropriately to co-workers and supervisors; meeting production, quality, and attendance standards; performing routine, repetitive, simple jobs in the normal work setting; doing complex work; doing varied, changing work; and performing work in other than a sheltered setting.

Dr. Robotti further found that plaintiff was totally disabled from all work as a result of the psychiatric illness which commenced in 2000, became a severe impairment in 2002, and continues to prevent plaintiff from working. Dr. Robotti noted that plaintiff had slow speech ...

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