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Banks v. Astrue

United States District Court, W.D. New York

June 28, 2013

MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant

Page 179

For Tommy Lee Banks, Plaintiff: Jaya Ann Shurtliff, Kenneth R. Hiller, LEAD ATTORNEYS, Law Offices of Kenneth Hiller, Amherst, NY.

For Michael J. Astrue, Commissioner of Social Security, Defendant: Kathryn L. Smith, LEAD ATTORNEY, U.S. Attorney's Office, Rochester, NY.


HONORABLE MICHAEL A. TELESCA, United States District Judge.

Page 180



Tommy Lee Banks (" Plaintiff" ) brings this action pursuant to Title XVI of the Social Security Act, seeking review of the final decision of the Commissioner of Social Security (" Commissioner" ) denying his application for Supplemental Security Income (" SSI" ). Plaintiff alleges that the decision of Administrative Law Judge (" ALJ" ) John P. Costello was not supported by substantial evidence in the record and was based on erroneous legal standards.

Presently before the Court are the parties' competing motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, this Court finds that the decision of the Commissioner is supported by substantial evidence in the record and is in accordance with the applicable legal standards. Thus, the Commissioner's motion for judgment on the pleadings is granted, and Plaintiff's motion is denied. Plaintiff's complaint is dismissed with prejudice.


On June 24, 2008, Plaintiff protectively filed for SSI benefits, alleging disability beginning on July 17, 2008. Administrative Transcript (" Tr." ) 115-118. His claim was denied on October 22, 2008. Tr. 77. At Plaintiff's request, an administrative hearing was held on December 15, 2009, before ALJ John P. Costello in Rochester, New York. Tr. 35-66. Plaintiff, who was represented by attorney Gregory Fassler, testified at the hearing. Id. Peter A. Manzi, an impartial vocational expert, also testified. Id.

On January 7, 2010, the ALJ denied Plaintiff's claim. Tr. 18-34. He found that Plaintiff had not been under a disability within the meaning of the Social Security Act since the date the application was filed. Id.

On March 5, 2012, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. Tr. 1-4. This action followed.


Plaintiff claimed that he was disabled due to post traumatic stress disorder (" PTSD" ), anxiety, depression, and left eye blindness. Tr. 39. At the hearing, Plaintiff argued that he was " unable to sustain any one of the basic mental demands of even unskilled sedentary work and should, therefore, be found disabled under Social Security ruling 85-15." Tr. 39. Prior to the period at issue, on April 18, 2005, Plaintiff was treated at Strong Memorial Hospital (" Strong" ) for gunshot wounds to the face, chest, and abdomen. Tr. 222.

A. Non-Medical Evidence

Plaintiff was born on June 3, 1964, and was 44-years-old at the time of filing. Tr. 115. He completed the eleventh grade with special education classes. Tr. 131. Plaintiff lives alone in an apartment, and testified that he performed his own personal care. Tr. 48, 134. He also testified that he could not see from his left eye. Tr. 54. He alleged recent pain in his back during the week before the hearing and headaches " every now and then." Tr. 55-56.

Plaintiff reported that he spent most of his time at home because he did not trust

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himself around other people. Tr. 42. He stated that he felt " nervous and scared" to be in public, that he believed other people were talking about or looking at him when he was in public, and that other people intended to hurt him. Tr. 44, 49. He denied anxious feelings around his family. Tr. 44. Plaintiff claimed that he would leave his home only to go to medical appointments, or to go grocery shopping with his family. Tr. 42-43. He testified that he was able to walk down the street alone to go to the corner store. Tr. 43. He did not have a driver's license, so he rode the bus to medical appointments. Tr. 49. Plaintiff stated, however, that riding the bus was " very difficult" for him. Tr. 49.

Plaintiff stated that he cleaned his apartment often. Tr. 47. He reported that he had no difficulty grabbing objects, standing, or walking. Tr. 55-56. He denied difficulty talking to others, and he testified that he read books and the newspaper and watched the news on television. Tr. 48, 51.

Plaintiff complained of panic attacks occurring for half an hour two to three times per week with pressure in his chest. Tr. 44-45. He testified that he missed one doctor's appointment because he was not calm enough to leave his home. Tr. 50. Plaintiff also stated that nightmares of being shot disrupted his ability to sleep. Tr. 46. He alleged bouts of sadness and tearfulness and claimed not to like himself sometimes. Tr. 52. He denied suicide attempts. Tr. 53.

Plaintiff testified that he was seeing a therapist, and that he had a case manager for two and a half years to assist in his daily living. Tr. 42, 52, 58. He said he needed others to remind him of upcoming events. Tr. 53-54. Plaintiff also stated that he took medications on a regular basis for his alleged psychiatric problems. Tr. 53. He said the medications " kep[t] him together," but that he still had symptoms on a daily basis. Tr. 53.

At the hearing, impartial Vocational Expert (" VE" ) Peter Manzi testified that Plaintiff's past work as a painter constituted " medium work" and is considered " skilled" under the Social Security Regulations. Tr. 62. He stated that, because Plaintiff lacks depth perception, he would not be able to perform this past work. Id. The ALJ asked Mr. Manzi to assume an individual with the same vocational profile as Plaintiff who could do work at all exertional levels but did not have bilateral vision and would work primarily alone with occasional supervision. Id. Mr. Manzi testified that such an individual could be a bagger (Dictionary of Occupational Titles (" DOT" ) No. 920687014) or a laundry worker (DOT 361385018). Id. The ALJ then added to the above hypothetical, by including the restriction that the individual had to work primarily with things instead of people. Tr. 63. Mr. Manzi testified that such an individual could be a hand packager (DOT 920587018) and a laundry worker.

B. Relevant Medical Evidence

I. Evidence Prior to Plaintiff's July 17, 2008 Application

On March 28, 2007, Plaintiff visited Strong and claimed that he had recently been diagnosed with PTSD, that he was seeking psychiatric treatment, and that he was doing " very well." Tr. 213-14. At that time he was enrolled in individual counseling and medication management treatment. Tr. 236-97. In a treatment plan from July 23 to October 23, 2007, Dr. Nancy Cain, a psychiatrist, and Ms. Melissa Sydor, a therapist, reported that Plaintiff had a current global assessment of functioning (" GAF" ) of 60 with a GAF of

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65-70 for the past year.[1] Tr. 286-87. In a treatment plan from October 23, 2007, to January 23, 2008, Dr. Cain and Ms. Sydor reported that Plaintiff had a current GAF of 55 with a GAF of 65-70 for the past year. Tr. 288-89.

Several mental status examinations performed in 2007 revealed that Plaintiff exhibited normal thought contents, full-to-fair ranges of affect, cooperative behavior, normal orientation, normal motor behavior, but a higher level of anxiety. Tr. 279-83, 290-97. Plaintiff often reported feeling well and sleeping better, but his mood was dependent on his pain level. Tr. 282, 290-97. His medications (Zoloft and Hydroxyzine) were helpful in controlling his symptoms. Id.

From December 27, 2007, to March 6, 2008, Plaintiff sought treatment with Mr. Virgilio DeSio, a licensed social worker. Tr. 270-80. At each visit, Plaintiff displayed appropriate affect, an organized thought process, and good concentration. Tr. 270, 273, 276-79.

At the December 27, 2007 appointment, Plaintiff spoke about the good support system he had with his siblings and his daughter, and he reported that he spent several days a week watching his grandchildren and spending time with his family. Tr. 279. At that same session, Plaintiff expressed his wishes to obtain a letter from either his doctor or therapist to bring to his court hearing. Id. Two weeks later, on January 10, 2008, Plaintiff again asked Mr. DeSio for a letter for the Social Security Administration (" SSA" ). Tr. 278. Mr. DeSio refused, and Plaintiff stated, " I only want the letter for Social Security, so I can move forward with my life." Id. Mr. DeSio recommended group therapy, to which Plaintiff responded, " I don't want to hear other people's problems, I want a letter to help me with my problems." Id. ...

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