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Dejesus v. Colvin

United States District Court, S.D. New York

January 23, 2014

MARIA DEJESUS, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

GABRIEL W. GORENSTEIN, Magistrate Judge.

Plaintiff Maria DeJesus brings this action pro se pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her claims for Disability Insurance Benefits and Supplemental Security Income ("SSI") under the Social Security Act. The Commissioner has moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. DeJesus has not responded to the motion. For the reasons stated below, the Commissioner's motion should be granted.

I. BACKGROUND

A. DeJesus's Claim for Benefits and Procedural History

DeJesus applied for disability benefits and SSI benefits on November 20, 2007, alleging that she became disabled on March 1, 2006. See Administrative Record, filed Mar. 8, 2013 (Docket # 13) ("R."), 89, 172-73. She was insured for benefits through June 30, 2007. R. 13. DeJesus was in the army until she was discharged in March 2006, R. 52, 263, and has not engaged in substantial gainful employment since that time, R. 13.

On January 31, 2008, the Commissioner denied DeJesus's application for disability and SSI benefits. R. 109-20. DeJesus requested a hearing before an administrative law judge ("ALJ"). R. 25-26. ALJ Newton Greenberg held a hearing on October 20, 2008. R. 29-37. On December 23, 2008, the ALJ issued a decision finding that DeJesus was not disabled. R. 86-97. DeJesus then appealed the ALJ's ruling to the Appeals Council, R. 137-38, which granted the request for review and remanded the case for resolution of certain issues, R. 98-102. A second hearing was held before ALJ Robert Dorf on March 11, 2011. R. 38-83. On March 18, 2011, ALJ Dorf issued a decision finding that DeJesus was not disabled. R. 8-21. DeJesus once again appealed the ALJ's ruling to the Appeals Council, R. 5-6, but her request for review was denied on July 27, 2012, R. 1-3.

On September 28, 2012, DeJesus filed the instant pro se lawsuit seeking review of the ALJ's decision under 42 U.S.C. §§ 405(g) and 1383(c)(3). See Complaint, filed Sept. 28, 2012 (Docket # 2). On August 2, 2013, the Commissioner moved for judgment on the pleadings. See Notice of Motion, filed Aug. 2, 2013 (Docket # 24); Memorandum of Law in Support of the Commissioner's Motion for Judgment on the Pleadings, filed Aug. 2. 2013 (Docket # 25). When DeJesus failed to respond to the motion, the Court issued an order sua sponte extending her time to do so. See Order, filed Sept. 16, 2013 (Docket # 27). Notwithstanding this Order, DeJesus has filed no papers in opposition to the Government's motion.

B. The Administrative Record Before the ALJ

1. Treating Source Records

There are no treating source records for the relevant time period, March 2006 to June 2007. Since August 2007, however, DeJesus has received treatment on a weekly basis from Dr. Paul Salkin, M.D., a licensed psychiatrist. R. 201, 224, 379. On March 4, 2009, Dr. Salkin completed a Mental Medical Source Statement Questionnaire in which he evaluated the severity of DeJesus's mental health problems. R. 224, 348-58. In his clinical findings, Dr. Salkin reported the following symptoms: "cutting herself, urge to cut, depression, cannot focus, [and] anxiety." R. 348. Using the Diagnostic and Statistical Manual of Mental Disorders ("DSM") system of classifications, he diagnosed DeJesus with Bipolar II Disorder, Panic Disorder without Agoraphobia, and Attention-Deficit/Hyperactivity Disorder (Predominantly Inattentive Type) on Axis I, Major Depressive Disorder (Single Episode, Moderate) on Axis II, and asthma on Axis III. R. 348.[1] On Axis V, Dr. Salkin gave DeJesus a GAF score of 45, id., which indicates "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job), " DSM at 34.[2] Based on this assessment, Dr. Salkin gave DeJesus a "guarded" prognosis. R. 348. Dr. Salkin's questionnaire also noted that DeJesus was taking prescribed medications for her mental conditions, including Strattera, Prozac, and Seroquel. Id.

Dr. Salkin's report indicated that DeJesus's psychiatric issues impacted her day-to-day living. Dr. Salkin found that DeJesus had "marked" restrictions in the following areas:[3] restriction of activities of daily living; difficulties in maintaining social functioning; and deficiencies of concentration, persistence, or pace. R. 349. He also checked a box on the form indicating that DeJesus had one or two "episodes of decompensation [w]ithin [a] 12 month period, each of [which is] at least [t]wo weeks duration."[4] Id . Additionally, Dr. Salkin evaluated DeJesus's ability to perform work-related activities "on a day-to-day basis in a competitive work setting, " finding DeJesus's capabilities in most categories to be "Unable to Meet Competitive Standards." R. 350.[5] Dr. Salkin concluded from this that DeJesus's mental condition "has caused more than a minimal limitation of ability to do any basic work activity" and that "even a minimal increase in mental demands or change in the environment would be predicted to cause [her] to decompensate." R. 351. Finally, Dr. Salkin predicted that, if DeJesus started working again, her mental condition would cause her to be absent from work more than four days per month. Id.

On February 13, 2011, Dr. Salkin completed a follow-up Mental Medical Source Statement Questionnaire in which he provided an update on DeJesus's mental health. R. 225, 450-54. According to the questionnaire, DeJesus had achieved minor improvements, but she still faced significant limitations. Using the DSM system of classifications, Dr. Salkin diagnosed DeJesus with Major Depressive Disorder (Single Episode, Moderate) and Bipolar II Disorder on Axis I, R. 450, and gave DeJesus a GAF Score of 55, which indicates "[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers), " DSM at 34. Dr. Salkin noted that DeJesus was taking several medications for her condition, including Lexapro, Xanax, and Topamax. R. 450. Dr. Salkin did not note whether DeJesus had continued to cut herself or engage in any other self-abusive behavior. In this second questionnaire, Dr. Salkin assessed that DeJesus continued to have marked restriction in activities of daily living, marked difficulties in maintaining social functioning, marked deficiencies of concentration, persistence, or pace, and one or two episodes of decompensation within a 12 month period. R. 451. However, Dr. Salkin did report a slightly improved prognosis for DeJesus's capabilities to function in a work environment. In contrast to the first report, in which Dr. Salkin found DeJesus to be unable to meet competitive standards in most categories of mental capabilities, in this second report, Dr. Salkin found DeJesus's capabilities in all categories to be "[s]eriously [l]imited, [b]ut not [p]recluded." R. 452. Additionally, this time Dr. Salkin did not check off the box indicating that "a minimal increase in the environment would be predicted to cause [her] to decompensate." R. 453. Nevertheless, Dr. Salkin still predicted that DeJesus would likely be absent from work more than four days per month. Id.

In addition to Dr. Salkin's questionnaires, the record contains DeJesus's medical records from her visits to Bellevue Hospital Center from January 16, 2008, until February 10, 2011. R. 359-78. In a checkup visit on January 16, 2008, DeJesus reported having various physical and mental problems. R. 376. She told the treating physician that she was having regular asthma attacks, that she had previously suffered from hip bursitis[6] during her pregnancy, and that she had knee pain. Id . She also informed the physician that she was depressed and had social anxiety. Id . In a follow-up visit on August 20, 2008, the physician found that DeJesus was "abnormal[ly] anxious" but that she had "no pain issues at this time." R. 374. On September 11, 2008, DeJesus reported that she was having migraine headaches on a regular basis, R. 373, but by November 3, 2008, the physician reported that DeJesus was having no pain issues, R. 378. On November 14, 2008, DeJesus returned to the clinic for her continued asthma problems, noting that it was exacerbated at night but that she was using albuterol to combat it and was trying to quit smoking. R. 371. At her next visit to Bellevue Hospital on February 24, 2009, the physician found that DeJesus's migraine issues were "stable" and that her asthma condition was "controlled." R. 370. Additionally, the physician found her psychiatric condition to be "alert" and "oriented" and noted that she was "not suicidal." R. 369-70. At an appointment on April 16, 2009, DeJesus reported having bursitis and lateral leg pain that became "worse with climbing stairs." R. 366.

The next clinic record is from an appointment on November 4, 2010, during which DeJesus was treated for flu-like symptoms. R. 363. In the record for this appointment, the treating physician noted DeJesus's history of anxiety, depression, and asthma but did not mention her bursitis or other pain problems. R. 364. The final clinic record at Bellevue Hospital comes from February 10, 2011. R. 360. DeJesus told the physician that her asthma had improved and that she "ha[d] not needed to use her albuterol at all." Id . The physician reported that DeJesus denied being fatigued or having a depressed mood, id., and that DeJesus was having "no pain issues at this time, " R. 361.

2. Federation Employment Guidance Service

DeJesus was evaluated by the Federation Employment Guidance Service ("F.E.G.S.") for the first time from June to July 2007, at the end of the Social Security eligibility period. R. 227-50. During the evaluation, DeJesus reported that she took care of her eight-month-old daughter and performed household chores but that she could not mop, vacuum, or lift heavy items because of joint problems. R. 232. DeJesus also mentioned that she had supportive friends, enjoyed reading, and attended church every other week. Id . Additionally, DeJesus reported that she had received her GED and could travel independently by bus or train. Id . Nevertheless, DeJesus asserted that she could not work because she suffered from various physical problems, including joint pain, bursitis of the hip, knee pain, and asthma, and from psychological problems, including depression. R. 232-33.

Although DeJesus was not receiving mental health services at the time of the F.E.G.S.'s evaluation, she was given a PHQ-9 score of 18, R. 231, indicating moderately severe depression, R. 239.[7] In response to inquiries as to how often she felt certain symptoms, she responded that "nearly everyday" she: felt down, depressed, or hopeless; had trouble falling asleep, felt tired or had little energy; felt bad about herself or felt like a failure; and had trouble concentrating on things, such as reading the newspaper or watching television. R. 231. As to whether she felt she would be better off dead or like hurting herself, she responded that she felt like this "on several days." Id . Furthermore, DeJesus claimed that, because of these issues, she found it "very difficult" to "do [her] work, take care of things at home, or get along with other people." Id . DeJesus denied having any suicidal or homicidal behavior. Id.

A F.E.G.S. social worker assessed that DeJesus possessed work skills, good cognition, and a significant support system. R. 232. The social worker also found that DeJesus was capable of thinking clearly, traveling independently, and maintaining adequate grooming. Id . On June 29, 2007, a F.E.G.S. examiner reported that DeJesus had bursitis of the hip during pregnancy, mild hip joint tenderness, knee pain, longstanding depression, insomnia, mood swings, a history of self-mutilation, and infrequent suicidal thoughts. R. 235.

On July 12, 2007, Susan Fields, M.D., evaluated DeJesus's various physical and psychological issues. R. 235-38. Dr. Fields assessed that DeJesus had a present pain level of 7 out of 10 and that DeJesus's pain level ranged from 5 to 10. R. 235. However, she did not find that DeJesus had any specific physical work restrictions, recording that DeJesus would be capable of sitting, standing, walking, pulling, climbing, bending, kneeling, reaching, and grasping up to 4 to 5 hours in an 8 hour period. R. 235-36. Fields diagnosed DeJesus with bursitis of the hip joints, knee pain, bipolar disorder, and panic disorder without agoraphobia. R. 237. Fields ruled out post-traumatic stress disorder. Id . She concluded that DeJesus's "unstable medical and/or mental health conditions... require treatment (a Wellness Plan) before a functional capacity outcome can be made." Id . Accordingly, Dr. Fields placed DeJesus on a "Wellness Plan" for three months before making a functional capacity determination. R. 237, 249.

From December 31, 2008, to January 6, 2009, the F.E.G.S. examined DeJesus for a second time to determine if her mental health condition had improved since she was placed on the "Wellness Plan." R. 311-47. DeJesus reported to the examiner that she had a history of mental health issues and that she was being treated by Dr. Salkin. R. 320. She stated that she had, in the past, thought about hurting or killing herself and that she had made five suicide attempts, with the most recent attempt being in 2005. Id . However, she also reported that she was currently taking Prozac and Xanax and that she was no longer having suicidal ideation. Id . In this examination, DeJesus complained that she continued to suffer from the following issues "nearly everyday": she felt down, depressed, or hopeless; she had trouble falling or staying asleep; she felt tired or had little energy; she felt bad about herself or felt like a failure; and she had trouble concentrating on things, such as reading the newspaper or watching television. Id . However, DeJesus denied having problems with her appetite or suffering from any suicidal or self-abusive thoughts. Id . Finally, DeJesus stated that, because of these issues, she found it "somewhat difficult" to "do [her] work, take care of things at home, or get along with other people." Id . This answer reflected a slight improvement from DeJesus's previous F.E.G.S. examination where she reported that her mental health issues made it "very difficult" to manage. R. 231. Based on her answers in this report, DeJesus was given a PHQ-9 Score of 16, R. 320, which indicated moderately severe depression, R. 332. The social worker assigned to DeJesus's case reported that DeJesus was capable of traveling independently by bus or train, that she was currently taking care of her two-year-old daughter, that she had emotionally supportive friends, and that she occasionally attended church. R. 321-22. At the same time, the social worker noted DeJesus's complaint that she could not work "due to bipolar, panic attacks, back pains, [and] asthma." R. 322.

As part of the F.E.G.S. examination process, on December 31, 2008, Dr. James Nguyen, M.D., examined DeJesus to evaluate the ongoing status of her physical and mental health issues. R. 324. First, DeJesus reported to Dr. Nguyen that she had been diagnosed with, and was currently suffering from, bipolar disorder, posttraumatic stress disorder, depression, anxiety, asthma, and back pain. R. 323. Dr. Nguyen then performed a physical examination of DeJesus and made the following findings: she had minimal tenderness on the left side of her lumbosacral spine, she had no loss of range of motion, the straight leg raise test result was negative, and she had no bony tenderness. R. 326. From this, Dr. Nguyen concluded that DeJesus had no physical limitations in her ability to work and that she could lift and carry up to 20-50 pounds one to ten times per hour. R. 327. However, he determined that there were several environmental limitations on DeJesus's ability to work, recommending that she avoid workplaces with dust, extreme heat, or extreme coldness. Id.

Additionally, on December 31, 2008, a F.E.G.S. staff member evaluated DeJesus's psychological issues. R. 336. DeJesus told the staff member that she had the following symptoms: mood swings, depressed mood, insomnia, anxiety/fearfulness, and poor concentration. R. 336-37. The staff member assessed that DeJesus was well-groomed and cooperative but that she appeared restless and depressed. R. 337. Additionally, the staff member noted that DeJesus had poor concentration and a limited attention span. R. 338. The staff member determined that in the workplace DeJesus would face "moderate" functional impairment in her ability to follow work rules, accept supervision, maintain attention, relate to co-workers, and adapt to change. Id . She would face "severe" impairment in her ability to deal with the public and adapt to stressful situations. Id . The F.E.G.S. staff member used the DSM system of classifications to diagnose DeJesus with Bipolar I Disorder, Panic Disorder with Agoraphobia, and Attention-Deficit/Hyperactivity Disorder NOS on Axis I and asthma on Axis III. R. 339. Additionally, the staff member gave DeJesus a GAF score of 35, signifying that DeJesus suffered from "[s]ome impairment in reality testing or communication... or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood...." See DSM at 34. Consequently, the staff member judged DeJesus to be "[p]ermanently disabled from work, " R. 339, and recommended that she receive SSI benefits, R. 340. At the close of the F.E.G.S. investigation of DeJesus, on January 6, 2009, Dr. Nguyen concurred with the staff member and made the following employment disposition for DeJesus's case: "substantial functional limitations to employment due to medical conditions that will last for at least 12 months and make the individual unable to work." R. 329. Dr. Nguyen noted the following factors in support of this disposition: "bipolar disorder; panic disorder; agoraphobia; attention deficit disorder; all chronic and unstable... multiple psychiatric admissions for suicidality and multiple medication trials... [patient's] psychiatrist is supporting her SSI application. I concur that patient should be assisted to obtain SSI benefits due to her chronic, persistent and treatment resistant mood disorder." Id . Dr. Nguyen noted that this disposition was not at all based on DeJesus's alleged physical problems, that her asthma was "stable" and that her back pain "should not affect employment." Id.

3. Dr. Justin Fernando, M.D.

On December 5, 2007, Dr. Justin Fernando, M.D., a consultative orthopedist at Industrial Medicine Associates, P.C., performed a consultative orthopedic examination of DeJesus at the behest of the Social Security Administration. R. 17, 93, 256-59. DeJesus reported to Dr. Fernando that, in addition to her various psychological issues, she suffered from pain in both knees. R. 256. She also told Dr. Fernando that she "does all the activities of daily living with the exception of shopping." R. 257. Dr. Fernando observed that DeJesus's general appearance was normal, in that she "appeared to be in no acute distress, " that she could "walk on heels and toes without difficulty, " that she "[u]sed no assistive device, " and that she was able to "rise from [her] chair without difficulty." Id . After examining DeJesus, Dr. Fernando made the following findings: her hand and finger dexterity was intact; her cervical spine was capable of full flexion, extension, lateral flexion, and rotary movement and exhibited no cervical or paracervical pain; she had a full range of motion of her shoulders, elbows, forearms, wrists and fingers; she exhibited no joint inflammation, effusion, or instability; her thoracic and lumbar spines were capable of full flexion, extension, later flexion, and rotary movement and exhibited no spinal or paraspinal tenderness; she had a full range of movement of her hips, knees, and ankles; and she had some joint tenderness in both knees. R. 257-58. From these findings, Dr. Fernando diagnosed DeJesus with "chronic pain in both knees (possible chronic degenerative changes in the joints)." R. 258. Overall, Dr. Fernando gave DeJesus a good prognosis, concluding that "[a]part from a mild degree of tenderness in the jointlines of both knees, no other physical finding was evident to support her claim of pain in both knees." Id.

4. Dr. Walter Spear, Ph.D.

On December 10, 2007, Dr. Walter Spear, Ph.D., a licensed psychologist at Industrial Medicine Associates, P.C., performed a consultative psychological examination of DeJesus. R. 17, 262-65. Dr. Spear noted that DeJesus had never been hospitalized for psychiatric reasons and that she had been receiving weekly psychiatric treatment from Dr. Salkin. R. 262. DeJesus complained to Dr. Spear that she was having difficulty falling asleep and that she had a loss of appetite. Id . She also reported having "depressive symptoms that include dysphoric moods, crying spells, feelings of hopelessness, irritability, fatigue/loss of energy, worthlessness, diminished self-esteem, and recurrent thoughts of death, but no plan or intent to hurt herself." Id . Additionally, DeJesus complained of having excessive apprehension, getting agoraphobic, and having ...


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