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Burnette v. Astrue

United States District Court, Second Circuit

July 8, 2013

ELIZABETH ANN BURNETTE, Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security Defendant.

DECISION AND ORDER

MICHAEL A. TELESCA, District Judge.

INTRODUCTION

Elizabeth Ann Burnette ("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 her application for Supplemental Security Income ("SSI"). Plaintiff alleges that the decision of Administrative Law Judge ("ALJ") Lawrence Levey 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.

PROCEDURAL HISTORY

On June 8, 2010, Plaintiff filed an application for SSI benefits, alleging disability since June 8, 2010. Administrative Transcript ("Tr.") 46, 114. On August 6, 2010, her claim was denied. Tr. 47-49. At Plaintiff's request, an administrative hearing was held on August 8, 2011 before ALJ Lawrence Levey. Tr. 21-45. Plaintiff appeared in Rochester, New York, with her attorney, Carrie Smith, and the ALJ presided in Baltimore, Maryland, via videoconference. Tr. 21-23. Both Plaintiff and Marvin Bryant, an impartial vocational expert, testified at the hearing. Tr. 21-45.

On August 31, 2011, the ALJ denied Plaintiff's claim. Tr. 9-17. 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 26, 2012, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. Tr. 1-3. This action followed.

FACTUAL BACKGROUND

In Plaintiff's application for SSI benefits, she claimed that her disability was due to a back injury, arthritis in her spine, deafness in the left ear, and mental health issues. Tr. 127. At the hearing, she argued that she met Listing 12.05 of the Social Security Regulations (Mental Retardation). Tr. 27.

A. Non-Medical Evidence

Plaintiff was born on June 28, 1959, and was 50 years old at the time of filing. Tr. 114. She is a high school graduate who took normal classes and did not require special education. Tr. 28. She attended college at Bryant and Stratton for a period of time, but she did not complete the program because she had a child. Tr. 29.

Plaintiff testified that she first noticed her hearing problem "about three years ago." Tr. 32. She claimed that her back problem began in 2010. Tr. 33. Her doctor prescribed pain medication, which she testified helped her "a little." Id.

Plaintiff testified that her mental health problems began in 2008 or 2009. Tr. 34. A drug and alcohol counselor advised her to seek help for her mental health issues. Plaintiff also testified that she needed help because she "ha[d] a hard time adjusting, " leaving her home, and doing daily activities and that she had sleeping difficulties and heard voices. Id . Plaintiff indicated that mental health medications gave her some drowsiness, but they were helping her sleep well at night. Tr. 36. She had been drug and alcohol free for one year. Id.

Plaintiff testified that her daughter usually accompanied her if she had to leave her home, but she was able to take the bus alone and go to her appointments. Tr. 35. She spent most of her days at home, but attended individual and group therapy sessions and attended church, but not every week. Tr. 36-38. Plaintiff was able to feed herself, take care of her personal needs, and perform light house cleaning, although friends helped her with household chores. Tr. 140-41.

At the hearing, the ALJ posed a hypothetical question to impartial Vocational Expert ("VE") Marvin Bryant to determine Plaintiff's employment capabilities. He asked Mr. Bryant to assume a person of the same age and education as Plaintiff, with no work experience, who was limited to light exertion, required the option to sit or stand at will, could only occasionally climb ramps or stairs, could occasionally balance, stoop, kneel, crouch, and crawl, could not climb ladders, ropes, or scaffolds, and had left ear hearing loss. Tr. 42. The ALJ asked Mr. Bryant to further assume that this individual was limited to simple, routine, and repetitive tasks, with only simple work-related decisions with few, if any, changes in the workplace, and only occasional interaction with co-workers, the public, and supervisors. Tr. 43. Mr. Bryant opined that such a person could work as a collator operator (Dictionary of Occupational Titles ("DOT") No. 208.685-010). The exertional level of this job is light and unskilled. Such a person could also work as an apparel stock checker (DOT No. 299.667-014), with the same exertional level of light and unskilled. Such a person could also work as a surveillance system monitor (DOT No. 379.367-101). The exertional level of this job is sedentary and unskilled. Id . Mr. Bryant also opined that if an individual were off task as a result of his or her impairments for 20 percent of the workday, that individual could not engage in full-time, competitive employment at the unskilled level. Tr. 43-44.

B. Medical Evidence

On January 23, 2009, Plaintiff was evaluated for depression by Felicia Reed, a Licensed Medical Social Worker ("LMSW") at St. Mary's Mental Health Outpatient Clinic. Tr. 191-97. Plaintiff reported a three year history of auditory hallucinations. Tr. 192. She claimed voices commanded her to do self-harm and be violent. She denied suicidal ideation, but she admitted suicidal thoughts in the past and had attempted suicide one year prior. Plaintiff had trouble sleeping and reported racing thoughts.

On mental status examination, Plaintiff appeared neat and appropriately attired, and her behavior was cooperative. Her motor movements, cognition, and insight were unremarkable, and her speech was normal. Plaintiff's thoughts were logical, and her thought processes were positive for guilt, helplessness, and hopelessness. Her perceptions included visual hallucinations and hearing voices. Her mood was depressed and sad, her affect was congruent, she was alert and fully oriented, and her judgment was good. LMSW Reed diagnosed Plaintiff with depressive disorder not otherwise specified.

On February 9, 2009, Plaintiff was again seen by LMSW Reed. Tr. 198-205. Plaintiff was neatly and appropriately dressed and exhibited appropriate behavior. She had unremarkable motor movements, thought processes, cognition, and insight. Her speech was normal and her thoughts were logical. Her mood was depressed and her affect was congruent. She was alert and fully oriented, and had fair judgment.

On June 9, 2009, Plaintiff saw Dr. Muhammad Dawood at St. Mary's Mental Health Outpatient Clinic. Tr. 207-14. Plaintiff reported difficulty sleeping, and claimed she heard voices at night for the past five or six years. Mental status examination revealed that Plaintiff's behavior, motor movements, thought, perceptions, and insight were unremarkable. Her speech was soft and underproductive. Plaintiff's mood was sad, and her affect was flat and congruent. She was alert and fully oriented. Her judgment was good, but her memory was poor. Plaintiff exhibited numerous symptoms in the domains of depression, anxiety and psychosis. Dr. Dawood noted that various differential diagnoses were possible.

On August 4, 2009, Plaintiff saw Family Nurse Practitioner (FNP) Wilfred George for an ear infection. Tr. 250. Her left ear had a large amount of pus drainage and was tender to pressure. FNP George assessed otitis media, acute, and otitis externa, chronic. On August 31, 2009, Plaintiff saw FNP George for a followup appointment regarding her ear pain. Tr. 248. She had drainage in the ear canal that had decreased from the previous visit. Antibiotics had relieved her pain and reduced the drainage. On September 23, 2009, at another followup appointment, Plaintiff had some ear pain and drainage but FNP George reported that her condition was much improved from previous visits. Tr. 246. Plaintiff was alert and oriented, in no acute distress, and reported no pain in the last week.

On October 13, 2009, Plaintiff saw Dr. Dawood. Her behavior, motor movements, thoughts, perceptions, mood, and insight were unremarkable. Tr. 326-27. Plaintiff's affect was flat, she was alert and fully oriented, and she had good judgment.

On November 4, 2009, Plaintiff saw FNP George. Tr. 244. She had drainage in the left ear canal, but it had decreased from previous visits. She was alert and oriented, in no acute distress, and her mood and affect were appropriate. Plaintiff reported that she had pain, but that it did not limit her activities. Id.

On December 9, 2009, Plaintiff saw Dr. Samuel Rosati, her primary care physician. Tr. 242. Plaintiff denied paresthesias in her hands or feet, and denied increased fatigue. She rated her pain at 0/10, and had experienced no pain in the last week. Plaintiff's neurological examination was normal, and she had no weakness in her extremities.

On January 8, 2010, at an appointment with LMSW Reed, Plaintiff's global assessment of functioning ("GAF") was 55.[1] Tr. 205-06. Mental status examination revealed that Plaintiff's behavior was cooperative, and her motor movements, speech, thoughts, perceptions, and cognition were within normal limits. Plaintiff's mood was euthymic, her ...


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