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Avila v. Astrue

United States District Court, S.D. New York

March 28, 2013

ISABEL M. AVILA, Plaintiff,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, Defendant

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[Copyrighted Material Omitted]

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For Isabel M. Avila, Plaintiff: Charles E Binder, LEAD ATTORNEY, Binder and Binder P.C., New York, NY; John J. Moran, LEAD ATTORNEY, Marks, O'Neill, O'Brien & Courtney, P.C., Elmsford, NY.

For Michael J. Astrue, Commissioner of Social Security, Defendant: Susan D. Baird, LEAD ATTORNEY, U.S. Attorney's Office, SDNY (St Andw's), New York, NY.

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OPINION AND ORDER

John G. Koeltl, United States District Judge.

The plaintiff, Isabel Avila, brought this action to reverse a final decision of the defendant, the Commissioner of Social Security (the " Commissioner" ), that the plaintiff was not entitled to Supplemental Security Income (" SSI" ) benefits. The plaintiff filed an application for SSI benefits on July 20, 2009, alleging that her disability began on February 2, 2005. Her application was denied initially on September 15, 2009. After a hearing on March 21, 2011, an Administrative Law Judge (" ALJ" ) denied the plaintiff's application on April 26, 2011, finding that the plaintiff was not disabled. The ALJ's decision became the final decision of the Commissioner after the Appeals Council declined to review it on October 20, 2011. The parties have filed cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

I.

The administrative record contains the following facts.

The plaintiff testified at a hearing before the ALJ on March 21, 2011. (Tr. 21-31.) The plaintiff was 53 years old at the time of the hearing (Tr. 99), and her most recent relevant work was as a messenger (Tr. 24, 117-19). She alleges that she became disabled on February 2, 2005 (Tr. 39, 99), when she began experiencing physical and psychological impairments including arthralgias,[1] major depressive disorder, anxiety, insomnia, and anemia (Pl.'s Br. at 3). The ALJ did not call a vocational or medical expert to testify at the hearing. (Tr. 21-31.)

The plaintiff testified that she lived in an apartment by herself. (Tr. 23-24.) She testified that she most recently worked for two to three years as a messenger, which required her " to go from one building to one other building from the same company," until she was released in 2006. (Tr. 24, 117-19.) She stated that during the course of her eight-hour workday, she walked for two hours, stood for two hours, and lifted no more than ten pounds. (Tr. 118.) She stated that she was fired from her job for reasons other than her impairment. (Tr. 24, 117.)

The plaintiff testified that she suffered from severe pain and discomfort in her hands, back, and left leg (Tr. 24-25), caused by arthritis (Tr. 28). She claimed that her pain medication did little to relieve her pain. (Tr. 25.) She stated that she did not wear a back brace, and that she had not attended physical therapy. (Tr. 25.) In addition to pain, she testified that she experienced swelling throughout her body, especially in her hands. (Tr. 27-28.)

The plaintiff testified that her physical impairments made it difficult for her to care for herself. (Tr. 28.) She stated that it took her " three to four hours" to get ready in the morning because of the pain she experienced. (Tr. 28.) She testified that she could stand for no more than twenty-five minutes at a time, could sit for only twenty-five minutes continuously, could walk for three blocks at a time, and could lift light grocery bags. (Tr. 26-27.) She stated that she traveled by subway, cooked light meals, cleaned her apartment, and watched television. (Tr. 27.)

The plaintiff testified that she also suffered from depression and anxiety. (Tr. 25-26.) She stated that she was seeing a psychiatrist once a month and a therapist once a week. (Tr. 25-26.) She testified that despite treatment she continued to

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experience difficulty concentrating, as well as fortgetfulness and trouble sleeping. (Tr. 29.) She claimed that she had to " write down everything" because she was forgetful, had trouble concentrating because her " concentration [was] not good," and that she slept only two hours per night due to sleep difficulties. (Tr. 29.)

The plaintiff was evaluated at the Federation Employment and Guidance Service, Inc. (" FEGS" ) on February 23, 2009, and a summary of the evaluation was prepared on July 15, 2009. (Tr. 203-240.) Rose Chan, M.D., examined the plaintiff and reported inflammation in several joints. (Tr. 220, 224, 231, 234.) The report indicated that the plaintiff had difficulty grasping and holding objects, as well as walking or standing for long periods. (Tr. 224, 231, 234.) As to her daily life activities, the plaintiff reported that she prepared meals, did laundry, washed dishes, vacuumed, swept, mopped floors, made her bed, shopped for groceries, and socialized. (Tr. 214.) The plaintiff completed a Patient Health Questionnaire (" PHQ-9" ) at FEGS and received a score of 9, which correlated to mild depression. (Tr. 213, 215, 226, 236.) Dr. Chan diagnosed the plaintiff with depression, rheumatoid disorder, and hyperlipidemia. (Tr. 224, 231, 234.) Dr. Chan determined that the plaintiff could perform low-stress work, but that the plaintiff's " possible rheumatoid arthritis" was an unstable medical condition requiring a wellness plan before a functional capacity outcome could be made. (Tr. 224-25.)

The plaintiff saw Lawrence Hitzeman, M.D., three times--in May, September, and December of 2009. (Tr. 170-97.) When the plaintiff saw Dr. Hitzeman on May 12, 2009, the plaintiff reported suffering from " chronic pain in her bones especially in her left leg" and experiencing some swelling. (Tr. 174.) The plaintiff reported that she was " unable to walk more than one block" due to the pain. (Tr. 174.) Dr. Hitzeman indicated that the plaintiff had joint pain, morning stiffness, and muscle pain. (Tr. 174.) He found " 1 edema" in the plaintiff's lower left extremity. (Tr. 175.) However, on examination, Dr. Hitzeman observed that the plaintiff's gait was normal, and that she demonstrated normal muscle strength, muscle tone, and reflexes, as well as a full range of motion in all joints without swelling or deformity. (Tr. 175.) Based upon the examination, Dr. Hitzeman diagnosed the plaintiff with major depression, insomnia, arthralgias, external hemorrhoids, and constipation. (Tr. 175.) He started the plaintiff on Anaprox in an attempt to alleviate the symptoms of her arthralgias, and Ambien to help her sleep. (Tr. 175.) Although the plaintiff stated that her depression was gone, Dr. Hitzeman expressed the belief that " many of her symptoms may be explained by depression . . . ." (Tr. 175.) He indicated that the plaintiff was unable to work for at least twelve months. (Tr. 172.)

The plaintiff saw Dr. Hitzeman again on September 10, 2009. (Tr. 176-77.) Dr. Hitzeman confirmed his diagnosis of major depression, for which he prescribed Cymbalta. (Tr. 176-77.) He also added Vicoprofen for the plaintiff's arthralgias and Trazodone for her insomnia. (Tr. 177.) He noted that the plaintiff's symptoms may be caused by fibromyalgia. (Tr. 177.) Upon examination, Dr. Hitzeman observed that the plaintiff's gait was normal, that she demonstrated normal muscle strength, muscle tone, and reflexes, and that there was " no edema." (Tr. 176.) He assessed major depression, insomnia, arthralgias, external hemorrhoids, and constipation. (Tr. 176.)

The plaintiff saw Dr. Hitzeman once more on December 22, 2009. (Tr. 179-84.) Dr. Hitzeman noted that the plaintiff had

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pain with standing, and that her hemorrhoids were causing extreme bleeding. (Tr. 179.) Dr. Hitzeman again observed that the plaintiff's gait was normal and that she demonstrated normal muscle strength, muscle tone, and reflexes, and that there was " no edema." (Tr. 179.) He assessed major depression, insomnia, arthralgias, external hemorrhoids, constipation, anemia, and hypercholesterolemia. (Tr. 179.)

On September 1, 2009, Jerome Caiati, M.D., performed a consultative orthopedic examination of the plaintiff at the request of the Social Security Administration (" SSA" ). (Tr. 141-45.) Upon examination, Dr. Caiati observed that the plaintiff's gait and station were normal. (Tr. 142.) As to her daily life activities, the plaintiff told Dr. Caiati that she cleaned, did laundry, and went shopping. (Tr. 141.) Dr. Caiati noted that the plaintiff demonstrated full muscle strength and a full range of motion as well as normal reflexes and sensations throughout her arms and legs, and exhibited no joint inflammation or instability in her arms and legs. (Tr. 142.) He also noted that the plaintiff had no difficulty changing for the examination, getting on and off of the examination table, or rising from a seated position. (Tr. 142.) Her spine exhibited a full range of motion with no tenderness, and she demonstrated full grip strength bilaterally. (Tr. 142.) Dr. Caiati diagnosed the plaintiff with hypertension and a " [h]istory of pain in all bones and joints, etiology unclear." (Tr. 143.) He concluded that " [f]rom a musculoskeletal point of view, sitting, standing, walking, reaching, pushing, pulling, lifting, climbing, and bending are unrestricted." (Tr. 143.)

Also on September 1, 2009, Haruyo Fujiwaki, Ph.D., performed a consultative psychological examination of the plaintiff for the SSA. (Tr. 137-40.) The plaintiff reported that she cooked once a month, did laundry, cleaned, shopped for groceries, and traveled independently via public transportation. (Tr. 139.) Dr. Fujiwaki noted that the plaintiff had a normal appetite, experienced depression off and on for a while due to medical problems, reported anxiety and difficulty falling asleep, and denied having manic or psychotic symptoms. (Tr. 137.) He observed that the plaintiff's manner of relating, social skills, and overall presentation were fair; that her speech and language skills were adequate; that her thought processes were coherent and goal-directed; that her mood and affect were irritable; that her attention, concentration, and memory skills were mildly impaired; that her insight and judgment were fair; and that her intellectual functioning was below average. (Tr. 138-39.) Dr. Fujiwaki diagnosed the plaintiff with depressive disorder and anxiety disorder, and recommended that the plaintiff receive psychological and psychiatric treatment. (Tr. 139-40.) Dr. Fujiwaki concluded:

Vocationally, she is able to follow and understand simple directions and instructions. She can perform simple tasks independently. She has some difficulty maintaining attention and concentration. She is able to maintain a regular schedule with some difficulty due to emotional distress secondary to physical pain. She can learn new tasks with extended time. She can perform complex tasks with some difficulty and needs supervision. She can make some simple decisions. She may have some difficulty relating with others and dealing with stress appropriately. Difficulties are caused by fatigue, physical pain, and lack of support system.

(Tr. 139.)

On September 14, 2009, R. Nobel, Ph.D., a state agency psychologist, reviewed the record and assessed the plaintiff's condition. (Tr. 146-63.) Dr. Nobel assessed

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that the plaintiff had depression and anxiety, but that her depression and anxiety were not of listings-level severity. (Tr. 146, 149, 151.) Specifically, he opined that although the plaintiff had an affective disorder of depression and an anxiety-related disorder, her conditions did not satisfy the diagnostic criteria of impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, § § 12.04 and 12.06. (Tr. 149, 151.) He assessed that the plaintiff was mildly restricted in performing daily life activities, and had moderate difficulties in maintaining social functioning and concentration. (Tr. 156.)

Upon assessing the plaintiff's residual functional capacity, Dr. Nobel indicated that the plaintiff was " not significantly limited" in ten categories:

o The ability to remember locations and work-like procedures; o The ability to carry out very short and simple instructions; o The ability to sustain an ordinary routine without special supervision; o The ability to work in coordination with or proximity to others without being distracted by them; o The ability to make simple work-related decisions; o The ability to ask simple questions or request assistance; o The ability to get along with co-workers or peers without distracting them or exhibiting behavioral extremes; o The ability to maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness; o The ability to be aware of normal hazards and take appropriate precautions; ando The ability to travel in unfamiliar places or use public transportation.

(Tr. 160-61.)

Dr. Nobel also indicated that the plaintiff was " moderately limited" [2] in nine categories:

o The ability to understand and remember detailed instructions;
o The ability to carry out detailed instructions;
o The ability to maintain attention and concentration for ...

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