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Simon v. Colvin

United States District Court, Second Circuit

August 13, 2013

CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.[1]


MICHAEL A. TELESCA, District Judge.


Viviana Simon ("Simon" or "Plaintiff"), represented by counsel, brings this action pursuant to the Social Security Act § 216(i) and §223, seeking review of the final decision of the Commissioner of Social Security ("Defendant" or "the Commissioner") denying her application for disability insurance benefits ("DIB") and finding her ineligible for supplemental security income ("SSI"). The Court has jurisdiction over this action pursuant to 42 U.S.C. § 405(g).


On May 20, 2009, Plaintiff protectively filed applications for SSI, alleging an onset date of April 1, 2009. T.279-284. Plaintiff, who was one day shy of 63 years old at the onset date, alleged that she was unable to work due to diabetes, hypertension, depression and language barrier. T.184. After her benefits applications were denied, Plaintiff requested a hearing, which was conducted by Administrative Law Judge Scott M. Staller ("the ALJ") on March 1, 2011. T.43-68. The ALJ denied Plaintiff benefits in a written decision issued on March 31, 2011. T.20-30. This decision became the final decision of the Commissioner on May 16, 2012, upon the Appeals Council's denial of Plaintiff's request for review. T.1-3.

Plaintiff timely commenced the instant action. Presently pending are Plaintiff's Motion for Judgment on the Pleadings and the Commissioner's Motion for Judgment on the Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons discussed below, Plaintiff's motion is granted in part, Defendant's motion is denied, and the matter is remanded for further administrative proceedings.


A. Educational and Vocational Background

Plaintiff is a 67 year old woman from Cuba with a twelfth grade education. T. 50, 52. Plaintiff entered the United States in September, 2004 and speaks some English. T. 50. She testified that she suffers from diabetes, high blood pressure and depression. T. 52. She worked for five months in 2007 as an adult care provider cleaning and bathing patients, lifting patients and sitting them in a chair and assisting them to walk or transfer them to a wheelchair. T. 51, 285.

Simon testified that she cries "a lot for no reason" and suffers from memory lapses. T.53. Simon spends approximately six hours each day lying down because she often feels dizzy from the medications she takes. T.54. She is able to take care of her personal needs and can cook at times but has assistance with grocery shopping. T.54-55. Simon testified that the most weight she could lift is ten pounds. T. 59.

Simon was diagnosed with diabetes 15 years prior to the hearing date and had been taking insulin for three years. T.57 Plaintiff testified that she takes Novolog and Lantus every day to regulate her diabetes and takes Fluoxetine for depression and Lipitor for cholesterol control and Loratadine. T.56.

B. Medical Background

Plaintiff was treated at the Evelyn Brandon Health Center ("EBHC") of Unity Hospital for depression from February, 2009 through January, 2011. She underwent a mental health evaluation by Carlos Bahr, L.M.S.W. who diagnosed Simon with a "Major Depressive Disorder, recurrent, moderate severity." T. 335. Plaintiff reported that she had a long standing history of depression since she was an adolescent. T. 342. Her parents abandoned her at 11 and 12 years old and she lived independently at the age of 14 with a 7 year old sister who was legally blind. T. 342. The medical records indicate that Plaintiff's depression had increased over the prior 10 months since she was separated from her schizophrenic daughter who lives in Florida. T. 380. Plaintiff reported that she was treated inpatient for depression in Cuba when she was 45 years old followed by outpatient mental health services. T. 343. Social Worker Bahr found Plaintiff's behavior passive, her mood depressed and her affect congruent with her mood. T. 345. He assessed Plaintiff as having a Global Assessment of Functioning ("GAF") score of 56.

Treatment notes in April, 2009 indicate that Plaintiff reported experiencing feelings of loneliness and continued problems with insomnia. T. 386. She was assessed with a GAF score of 60 and Social Worker Bahr noted that Plaintiff had "some anxiety which may not rise to the level of axis I diagnosis." T. 394. Plaintiff underwent a psychiatric evaluation by Dr. Kevin McIntyre who noted Plaintiff's history of depression and her current feelings of "increasing depression including tearfulness, decreased desire to live, [and] lack of interest and activity." T. 348. He prescribed Prozac and Trazodone which was later discontinued due to lack of effectiveness. T. 337. Plaintiff continued with Prozac and Ambien was prescribed to help with her inability to sleep. Tr. 398. Two weeks later, Plaintiff reported that she was doing better, not crying as much and claimed Prozac was "very helpful." T. 337.

Plaintiff was examined by an independent physician, Dr. George Alexis Sirotenko, on June 25, 2009. T. 361-364. Dr. Sirotenko noted Plaintiff's history of diabetes, hypertension and depression. He noted that her blood sugars ranged between 250 and 270. He also noted her history of depression which was being treated by EBHC. Medications provided Plaintiff relief from the symptoms of depression. T. 361. Plaintiff was taking Lantus and Actos to control the diabetes. She also took Lisinopril/Hydrochorothiazide, Fluoxetine, Ambien, and INH. T. 361. Dr. Sirotenko noted that Plaintiff was able to cook, clean, shop and do laundry every day. He concluded that Plaintiff's "current physical examination is essentially within normal limits." T. 364. He further found no physical limitations but "given her history of depression, consideration of a formal psychiatric or psychological evaluation may be warranted." T. 364.

In July, 2009, Plaintiff returned for a therapy session with Social Worker Bahr. She reported that her mood improved with Prozac and the Ambien has helped her sleep better but she was still isolated and had problems with trust. T. 406. In August, 2009, Plaintiff indicated that she felt that she needed to break through her isolation and so was planning to visit her daughter in Florida. T. 410. An independent psychiatric examination conducted in July, 2009 found Plaintiff to have no severe impairment based on an affective disorder. T. 366

In September, 2009, Simon presented to her therapist as "mildly depressed" and frustrated. T.413. Similarly, in October, 2009, Plaintiff appeared "in no apparent distress" although worried about her schizophrenic daughter in Florida. Later in the month, Plaintiff was described as "doing well with continued good mood, good sleep." T. 414, 416. Similarly, in January, 2010, Plaintiff reported that she was in a good mood and doing well with sleep and energy. T. 423.

In November, 2009 Social Worker Bahr's treatment notes indicate that Plaintiff decided to shave her head because she felt that she was losing her hair. She reported that "for a few days she was not aware that she was getting up at night and emptying the refrigerator of food." T. 420. This behavior she attributed to Ambien. The treatment notes indicate that "schizoid personality disorder" should be ruled out. T. 420.

On June 10, 2010, Plaintiff appeared reserved and tired at her appointment. T. 437. Plaintiff's daughter relocated to the area but Plaintiff tried to "maintain distance from her." T. 437. Later in the month, Plaintiff complained of feeling depressed with lack of motivation, market isolation and intermittent crying, insomnia, pessimism and irritability. Tr. 439. Plaintiff stated that although she had thought that relocating her daughter to the area would make her feel better, she continued to feel lonely most of the time. T. 439. Social ...

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