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Barnes v. Astrue

United States District Court, Second Circuit

January 6, 2014



JEREMIAH J. MCCARTHY, Magistrate Judge.


This case was referred to me by Hon. Richard J. Arcara to hear and report in accordance with 28 U.S.C. ยง636(b)(1)(B) [21][1]. Before me are the parties' cross-motions for judgment on the pleadings pursuant to Fed.R.Civ.P. ("Rule") 12(c) [26, 28]. For the following reasons, I recommend that defendant's motion be denied, and that plaintiff's cross motion be granted in part and denied in part.


Plaintiff filed an initial application for Supplemental Security Income ("SSI") benefits, which were awarded on July 18, 1996 (T405).[2] The benefits were awarded due to a "severe learning disability and personality disorder" which met "the requirements of Listing 12.05 C, Appendix 1, Subpart P, Regulations No. 4" (T407). However, the benefits were terminated in 2002 as a result of plaintiff engaging in substantial gainful activity. Plaintiff's Memorandum of Law [28-1], p. 7.[3]

Plaintiff filed a second application for SSI and Disability Insurance Benefits ("DIB") on October 3, 2006, alleging that he was unable to work since June 1, 2006 (T16). Both applications were denied (T67). Plaintiff requested a hearing, which took place on February 4, 2009 before Administrative Law Judge ("ALJ") Bruce R. Mazzarella. (T24-62). Plaintiff was represented by Dennis Gaughan, Esq. Id . On March 9, 2009, ALJ Mazzarella issued a decision finding that plaintiff was not under a disability within the meaning of the Social Security Act from the alleged onset date through the date of the decision (T16-23). This became the final decision of the Commissioner on March 12, 2010, when the Appeals Council denied plaintiff's request for review (T1-5). This action followed.


Plaintiff sought SSI and DIB due to a "learning disability, bipolar, depression, suicidal, BACK AND NECK PROBLEMS, [and] ANGER ISSUES" (T134) (emphasis in original).

A. Medical Evidence Preceding the Relevant Period of Review[4]

Plaintiff submitted evidence of his previous application for SSI, including that his performance IQ was measured to be 70 on the Wechsler Adult Intelligence Scale administered on October 31, 1994 (T372).

On March 10, 2006, plaintiff was transferred to Erie County Medical Center ("ECMC") from St. Joseph's Hospital for evaluation (T209-219). He was at St. Joseph's due to a minor stab wound which he self-inflicted in response to a disagreement with his girlfriend (T217). He was diagnosed with adjustment disorder and mild mental retardation (T218). The attending physician assessed plaintiff as having a Global Assessment of Functioning ("GAF") score of 41-50, [5] and referred plaintiff to out-patient mental health counseling. Id.

B. Medical Evidence During the Relevant Period of Review

1. Mental Conditions and Treatment

On July 31, 2006, Christopher Frigon, a Licensed Master Social Worker at Hertel Elmwood Counseling Center's ("HECC"), completed a screening assessment diagnosing plaintiff with a depressive disorder not otherwise specified ("NOS"), alcohol abuse, and a learning disorder NOS. (T227). At this time, plaintiff was assessed with a GAF score of 55.[6] Id.

On September 21, 2006, plaintiff underwent a comprehensive behavioral health assessment administered by John Vullo, a Licensed Mental Health Counselor at Horizon Corporation's Bailey Kensington Counseling Center ("BKCC") (T269-91). Plaintiff reported an inability to keep a job for longer than two months, which he attributed to his temper (T269). He reported being classified as learning disabled and emotionally disturbed. Id . Plaintiff also complained of back and neck problems, along with a history of mild scoliosis. Id . Plaintiff reported that he has "bile leaking from [my] liver, severe acid reflux, and just all this mental stress going on" (T275). He stated that he "does not feel he can work but needs money to pay bills" (T269). Plaintiff denied current suicidal or homicidal thoughts (T270). At the time of the assessment he was not on medication, but had previously been prescribed Zoloft, which he no longer used because it was ineffective. Id.

Plaintiff was expelled from school in ninth grade for fighting (self-defense) and for threatening administrators (T282). Counselor Vullo was "unsure about the severity of the diagnoses of [learning disabled]" Id . Counselor Vullo noted several potential barriers to plaintiff's treatment, including limited intellectual functioning, limited education, learning difficulties, being socially withdrawn, and difficulties with interpersonal relationships (T285). He noted that plaintiff's current employment status was disabled, and that he was "[u]nable to hold a job for more than several months, is released for becoming angry at the supervisor, and will sometimes threaten assault" (T283). Plaintiff's initial treatment plan included individual and group counseling, psychiatric and medical evaluations, and referral to a vocational program (T286).

On October 5, 2006, Psychiatric Nurse Practitioner Adrienne Roy conducted a psychiatric assessment for Horizon (T262-66). Plaintiff reported being more irritable and easily provoked then ever, and "[f]eels that as time does on he is more likely to hurt someone" (T262). She noted his disheveled appearance, irritable and anxious mood, circumstantial and tangential though processes, referential and paranoid delusions, and poor concentration, insight, judgment and poor sleep (T263-64). Nurse Roy determined plaintiff had "lower than average intelligence" and "[p]oor impulse control" (T264). She diagnosed plaintiff with depressive disorder NOS, intermittent explosive disorder, alcohol abuse, and learning disorder NOS (T267). Nurse Roy prescribed Zyprexa to address anxiety, sleep issues, paranoia, and mood instability (T265).

On October 19, 2006, Nurse Roy reported that plaintiff's mood had not improved on Zyprexa, but that it had improved his sleep (T259). Nurse Roy stated that plaintiff did not appear to be a risk to himself or others. Id . She increased his Zyprexa dosage and advised a follow-up appointment in four weeks. Id.

On January 4, 2007, plaintiff reported to Nurse Roy that his mood was "up and down and miserable'" (T254). He stated that he feels taken advantage of, has continued "ideas of reference", [7] and complained of losing jobs due to his temper and inability to learn. Id . Plaintiff denied that he would continue treatment if he was awarded benefits. Id . Plaintiff again denied being a threat to himself or others. Id . Nurse Roy recommended that plaintiff take parenting classes, and that he not live alone with his baby "in the near future" due to his unpredictable temper, poor impulse control, history of violence, and paranoia (T255). She again prescribed Zyprexa. Id.

Nurse Roy wrote two letters to plaintiff's attorney on January 11 and March 28, 2007 (T295, 422). In the first letter, Nurse Roy stated plaintiff is being "treated for Depressive Disorder Not Otherwise Specified, Intermittent Explosive Disorder NOS, and Learning Disorder Not Otherwise Specified (by history, including a provisional diagnoses of Borderline Intellectual Functioning)" (T295). She further stated that plaintiff "has not had a proper trial of mood stabilizer/anti-psychotic medication due to missed appointments. It is not recommended that [plaintiff] work at present, given his reported poor work history and unpredictable impulse control. It is hoped that if [plaintiff] continues to comply with his medication regimen, and with assistance of a vocational rehabilitation program, his symptoms will improve, thus increasing his chances of success at employment." Id . However, in the second letter Nurse Roy wrote that "[i]t is... not recommended that [plaintiff] work given his anger and impulse control problems, poor insight and judgment, and difficulty initiating and sustaining change" (T422). The second letter was also signed by Counselor Vullo. Id.

At the recommendation of his counselor and his attorney, plaintiff was treated at ECMC on April 24, 2007 (T336). He reported being fired from his job of three weeks due to an "anxiety attack." Id . Plaintiff stated he was depressed, had poor coping skills, and difficulty controlling his temper. Id . He denied suicidal or homicidal thoughts, as well as current panic or anxiety. Id . Plaintiff admitted not taking Zyprexa because it "makes [him] dopey" (T340). His mental status examination showed coherent speech, goal oriented thought processes, fair insight and judgment, and an absence of hallucinations and delusions (T342). Plaintiff was diagnosed with "mood [disorder] NOS [to be ruled out], intermittent explosive [disorder], [and] depression NOS" (T343). He was assessed to have a GAF score of 51-60. Id . The treatment plan included a Comprehensive Psychiatric Emergency Program ("CPEP") evaluation and a lethality assessment. Id . Outpatient mental health treatment was recommended (T343-344).

On August 1, 2007, Horizon's BKCC transferred plaintiff's case to the HECC, which was closer to his home, due to his missing three appointments and being "noncompliant with treatment" (T359). Plaintiff was discharged from HECC on August 29, 2007, after he stopped attending sessions (T349). On September 11, 2007, plaintiff "spoke with his primary counselor and stated he no longer wanted to participate in treatment due to the fact that he does not feel he needs addictions treatment and his lack of time for treatment." Id . Upon discharge plaintiff was assessed to have a GAF score of 55 (T348).

On April 22, 2008, an initial psychiatric assessment was administered by Dr. Cirpili of Horizon Health Services (T363).[8] Plaintiff complained that he was unable to control his impulsivity. Id . Dr. Cirpili found that plaintiff was "not psychotic and is able to know right from wrong and was able to know the consequences of his actions." Id . Dr. Cirpili diagnosed plaintiff with impulse control disorder, anti-social trends, and financial and social problems. Id . He was assessed to have a GAF score of 57. Id . Plaintiff was directed to "attend Horizon clinic for further followup." Id.

On June 23, 2008, plaintiff was discharged from HECC because he "was not appropriate for treatment at this agency" (T364). He requested information on other mental health service providers, which he received (T366).

2. Consultative Mental Examinations

On January 31, 2007, a consultative psychiatric evaluation was conduct by Thomas Ryan, Ph.D. (T301-04). Plaintiff reported problems with his back and neck, as well as a history of asthma (T301). He further stated he had difficulty with sleep, a varying appetite, depression, irritability, stress, anxiety, and social withdrawal. Id . Plaintiff reported having hyper startle response, but not panic attacks, as well as past thoughts of self-harm, which he denied currently. Id . He further reported difficulty with memory, attention, and concentration, but no manic symptomatology. Id . Plaintiff stated that he is able to dress, bathe, and groom himself, as well as cook, clean, do laundry, and manage his money (T303). Throughout the mental examination plaintiff was cooperative and his social skills and overall presentation were adequate. Id . His recent and remote memory skills were mildly impaired, and his cognitive functioning was "[e]stimated to be in the borderline range." Id . Plaintiff's insight and judgment "[a]ppear[ed] to be somewhat poor." Id.

Dr. Ryan diagnosed plaintiff with depressive disorder NOS, impulse control disorder NOS, and reported suspected borderline intellectual functioning (T304). Also diagnosed were neck and back problems. Id . Dr. Ryan recommended that he continue psychological and psychiatric treatment, he also stated that vocational training and intelligence testing may be helpful. Id . Despite these impairments, Dr. Ryan concluded that plaintiff can follow and understand simple directions, perform simple tasks, and maintain attention, concentration and a regular schedule (T303). He found plaintiff capable of learning new tasks, but noted that he "would have some difficulty with complex tasks". Id . Dr. Ryan also stated that plaintiff's "[d]ecision making is somewhat poor", and that "[h]e tends to have some difficulties dealing with others and dealing with stress". Id . He concluded that the "[r]esults of the exam appear consistent with psychiatric and possibly cognitive problems which may interfere to some degree on a daily basis". Id.

On March 6, 2007, State agency medical consultant M. Mohan, Ph.D. completed a Psychiatric Review Technique and a Mental Residual Functioning Capacity assessment (T311-328). Dr. Mohan reported that plaintiff had mild limitations that restricted his activities of daily living, as well as his ability to maintain concentration, persistence, and pace (T321). Plaintiff had moderate limitations in social functioning, but no episodes of deterioration of extended duration. Id . However, Dr. Mohan concluded that plaintiff did not have an impairment that ...

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