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Brown v. Commissioner of Social Security

United States District Court, S.D. New York

February 28, 2014



GABRIEL W. GORENSTEIN, Magistrate Judge.

Plaintiff Knowledge Brown brings this action pursuant to 42 U.S.C. ยง 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security denying his claim for Supplemental Security Income under the Social Security Act. The Commissioner and Brown have each moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons stated below, the Commissioner's motion should be granted and Brown's motion should be denied.


A. Background

Brown applied for Supplemental Security Income ("SSI") benefits on March 4, 2011, alleging that he became disabled on December 1, 2009. R. 146-176.[1] Brown was born on October 15, 1980, R. 166, and most recently worked as a seasonal maintenance worker for the New York City Department of Parks and Recreation, R. 173. In response to the question on the application which asked Brown to "[l]ist all of the physical or mental conditions... that limit your ability to work, " Brown listed four conditions: (1) "anxiety"; (2) "depression"; (3) "schizophrenia"; and (4) "bipolar." R. 150.

On May 6, 2011, the Commissioner denied Brown's application for disability benefits. R. 52-58. Brown requested a hearing before an administrative law judge ("ALJ"). R. 60-62. ALJ Eric Borda held a hearing on December 21, 2011. R. 24-51. On December 30, 2011, the ALJ issued a decision finding that Brown was not disabled. R. 9-20. Brown appealed the ALJ's decision to the Appeals Council but the Appeals Council denied his request for review. R. 1-8.

Brown filed the instant lawsuit seeking review of the ALJ's decision. Both parties have moved for judgment on the pleadings.[2]

B. The Administrative Record Before the ALJ

1. Treating Source Records

Notwithstanding the claimed disability onset date of December 1, 2009, there are no treatment records for Brown until February 9, 2011, the date on which Brown was hospitalized at Lincoln Medical Center. On that date, he went to the emergency room reporting that "for the last couple of days he [had] been hearing voices telling him to kill himself." R. 211. He was diagnosed with "suicidal ideation, " and reported a history of paranoid schizophrenia, but stated that he had not been consistent with his medications for 18 months because he was "afraid of the meds." Id . He also stated that he "fe[lt] people [were] following him, " had "auditory hallucinations, " and said that he "want[ed] to kill himself." R. 215. A document titled "Psychiatric Emergency Assessment by Provider, " dated February 9, 2011, indicates that Brown's coherence upon admission to the hospital was characterized by "flight of ideas, " that he had "possible delusions" as well as "active ideation at present time, " and that he also experienced "command hallucinations." R. 302. He reported that he used marijuana "every morning if he has the money" and that he had used cocaine in the past but not in the previous 18 months. R. 303. He had no gross deficits in attention, calculation, recall, language, or visualmotor integrity. Id . He had "difficulty completing a sentence, " his thought process was "[s]omewhat disorganized [and] rambling, " and he was "calm, but unpredictable." Id . At that time, Dr. David Hauser diagnosed Brown with chronic paranoid schizophrenia and "cannabis dependence" based on the history he had provided. R. 304.[3] He also diagnosed Brown with "cannabis intoxication." Id . The doctor ruled out "substance induced psychosis" and "adjustment disorder." Id . The psychiatric emergency service assessment also states that Brown's "legal status" was "emergency admission... as evidenced by the assessment, the person has a mental illness which is likely to result in serious harm to self or others." Id . Dr. Hauser diagnosed "[c]hemical dependence" and "[f]amily problems" on Axis IV of the DSM's multi-axial classification system. Id.[4] On Axis V, Dr. Hauser gave Brown a Global Assessment Function ("GAF") of "35/55." Id.[5] Dr. Hauser prescribed "Risperidone 1 mg... for psychosis." Id.

On February 10, 2011, Brown was "resting well" at the hospital. R. 306. According to a "Psychiatric Emergency Service Progress Note" from that day, Brown reported that he had not been taking medications "for years" and that "the last time he took them was when he was in jail in Albany... on [a domestic violence] charge." R. 208. Brown also reported that he "fe[lt] much better and that he d[id] not belong in the psych ER" and that "his aunt told him to come to the ER and [complain of] voices in his head to help him get his SSI back which he state[d] that he ha[d] received in the past." Id . He stated at that time that he "want[ed] to be discharged ASAP." Id . The hospital record also notes, however, that Brown stated that the reason he reported to the ER was because "he had an argument with his mother and that he decided to come and get help." Id.

On February 11, 2011, another reassessment/evaluation report indicated that Brown "slept well during the night" with "no incident[s] or aggressive behavior noted." R. 312. He was medicated with Benadryl for anxiety and agitation and was "screaming to staff, " but verbal therapy was "provided with some effect." R. 315. At two times later that day, it was noted that he was "calm, " R. 316, and that he was "calm, [with] no disruptive behavior, " R. 317. Still later that day, he was "irritable at times" but "denie[d] hearing voices." R. 318.

On the morning of February 12, 2011, Brown underwent a psychiatric evaluation with Vyas Persaud, M.D., during which he stated that he was "feeling better... and denie[d] any suicidal/homicidal thoughts or plans." R. 329. Dr. Persaud reported that Brown was adequately dressed and groomed, had normal psychomotor activity, and had a logical and goal-directed thought process. R. 331. Brown had no gross deficits in attention, calculation, language, visualmotor integrity, insight, or judgment. Id . When Brown was awakened that day, he stated that he felt "a lot better" and denied auditory hallucinations and suicidal or homicidal ideation. R. 332. A nursing note from that date also indicated that Brown was "calm and manageable" with "no acting out behavior." R. 338. He was also compliant with his medication regimen and "display[ed] selective social and verbal interaction along with fair personal hygiene and grooming." Id . Additionally, he "continue[d] to state that he fe[lt] better at [that] time." Id.

On February 13, 2011, a nursing note indicated that Brown was still compliant with his medication regime, was "[a]lert and verbally responsive, ""denie[d] hearing voices, " and had "no acting out behavior." R. 343. Psychiatrist Michael Adams, M.D., wrote that Brown was "improving but still with limited insight, " though he was denying auditory hallucinations. R. 348. Dr. Adams wrote that Brown's psychotic symptoms were "resolving." Id . His principal diagnosis was schizoaffective disorder, unspecified, and he continued Brown on Risperdal. Id . A nursing note from later that day again indicated that Brown was denying "perceptual disturbances, " R. 349, and a note from later that evening similarly stated that he "denie[d] hallucinations [and] ideations" and had "no bizarre behavior [or] acting out, " R. 350.

A nursing note from the morning of February 15, 2011, states that Brown "slept well" and "remain[ed] calm and cooperative." R. 352. He was observed to be "up and about [the] unit with bright affect and good eye contact" and was compliant with his medication regimen. R. 353. Later that day, psychiatrist Arnaldo Morejon Suarez, M.D., found that Brown was "verbal, cooperative, [and in] good physical health." R. 355. Dr. Suarez made an Axis I diagnosis of unspecified psychosis and an Axis IV diagnosis of cannabis abuse, unspecified, with an Axis V GAF Score of 35. Id . Later that evening, a nursing note indicated that Brown was calm and compliant with medication and unit activities, with no bizarre behavior. R. 359.

A document titled "Comprehensive Discharge Summary (Psychiatry), " dated February 18, 2011, indicates that Brown was discharged from the hospital on February 18, 2011. R. 376-78. The summary contains the following note:

Pt. reported that he came to ER on his own to resume his psychiatric treatment and follow up appointment. Pt. said he had been receiving outpatient psychiatric treatment at Albany 3 years ago and he was on Zoloft and Zyprexa. Then she [sic] moved to NYC. After he came here he was working and doing better and did not feel he needed medication. So more than 2 years he is out of meds. Today pt. says, the day he came to ER (2/9/11) "I decided to come here to start my medicine and therapy."

R. 377. Brown stated that "he did not say in [the] ER that he was hearing voices or had suicidal/homicidal thought." R. 377. Similarly, at the time of discharge, Brown "denie[d] auditory hallucinations" and denied any suicidal or homicidal ideations. Id . Brown was then "on Risperdal [i.e., Risperidone] 2mg." R. 377. Brown's diagnosis was "schizoaffective disorder, unspecified." Id . He was discharged and "encouraged to comply with his aftercare and he was receptive." R. 378. On March 3, 2011, Brown signed a document titled "Attendance Agreement, " in which he agreed to attend counseling sessions three times per week. R. 185.

Brown returned to the emergency room at Lincoln Medical Center several times after his discharge. A document titled "Unscheduled [Emergency Department] Non Urgent Visit Note, " dated March 16, 2011, indicates that Brown returned to Lincoln Medical Center seeking a refill of Risperdal. R. 256. He had no suicidal or homicidal ideation. Id . The report states "missed psych appt in 7-B." Id . Brown's diagnosis was "Schizoaffective disorder, unspecified, " and he "refused to stay for psych." R. 256-57. He was discharged to home or self care. R. 256. Brown visited Lincoln Medical Center for an unscheduled non-urgent visit again on March 17, 2011, at which time he apparently sought a refill for "risperidal/cogentin." R. 258. Brown's diagnosis at this time was "[c]annabis abuse, unspecified." R. 259. He was discharged to home or self care. R. 258. The report further indicates that Brown "[c]ame [for] med re[fill]" and "psych consult placed." R. 259.

2. Michael Adams, M.D.

Several months after his discharge, on May 6, 2011, Brown had a session with Dr. Adams. R. 397. Dr. Adams found Brown's coherence to be "goal directed" and his thought content to be "rational/non-psychotic." R. 398. Brown was also logical and had no suicidal ideation. Id . Brown denied any perceptual disorders. Id . He had a depressed mood but no gross deficits in attention, calculation, recall, language, or visual-motor integrity. Id . Dr. Adams found no gross impairments to insight or judgment. R. 399. Dr. Adams made an Axis I diagnosis of schizoaffective disorder and cannabis abuse, an Axis III diagnosis of asthma, an Axis IV diagnosis of "unemployed, " and an Axis V GAF Score of 50. Id . He found that Brown was not at "high risk" status and posed no risk of self harm or violence. Id . Dr. Adams also found that Brown had the "[a]bility to form [a] positive therapeutic relationship." Id.

Brown saw Dr. Adams again for a follow-up visit three months later, on August 17, 2011. R. 411. During this visit, Dr. Adams noted no cognitive deficits and found Brown's thought process during this visit to be "concrete" in coherence and "logical." R. 412. He found no gross impairment to Brown's insight or judgment. R. 413. Brown complained of "lower back pain" and reported audio hallucinations consisting of "people screaming." Id . He also reported experiencing "TV sending messages [and] people on the street looking at him funny." Id . He reported that he stopped smoking cannabis and agreed to an increased dosage of Risperdal. Id . Dr. Adams made an Axis I diagnosis of schizoaffective disorder, an Axis III diagnosis of backache, unspecified, and an Axis V GAF Score of 50. Id.

On August 10, 2011, Dr. Adams provided a psychiatric assessment report, and on August 25, 2011, he completed a "Medical Assessment Report of Ability to do Work-Related Activities, " both in response to questionnaires submitted to him regarding Brown's claim for Supplemental Security Income benefits. R. 287-91. He stated that he saw Brown monthly for medication management in sessions lasting from 15 to 30 minutes. R. 287. Recounting Brown's initial visit to the ER, Dr. Adams stated that his urine toxicology was positive for THC, that he was having difficulty completing sentences, and that he had a "terrified" mood." Id . His thought process at that time was "disorganized/rambling" and he suffered from perceptual disturbances consisting of auditory hallucinations to kill himself. Id . His impulse control was "calm but unpredictable" and his "insight and judgment [were] impaired." Id . On the psychiatric assessment form, Dr. Adams provided an Axis I diagnosis of schizoaffective disorder-depressed type and cannabis abuse/dependence in partial remission. R. 288. On Axis II, he ruled out borderline intellectual functioning, and made an Axis IV diagnosis of "family problems." Id . Dr. Adams provided an Axis V GAF Score of 35 and a prognosis of "guarded." Id . In response to a question asking if Brown's impairments "lasted or can... be expected to last at least twelve months, " Dr. Adams responded "yes" and explained that "[Brown] has a chronic psychiatric illness that will require ongoing treatment." R. 288. Dr. Adams checked the boxes indicating that Brown had a "fair" ability to follow work rules and function independently. R. 289. However, he checked the boxes for "poor/none" with respect to ability to: relate to coworkers; deal with the public; use judgment; interact with supervisors; deal with work stresses; and maintain attention concentration. Id . He explained, "[Brown] has a history of learning disabilities that impair his ability to process information." R. 290. He checked the box indicating that Brown had a "fair" ability to understand, remember, and carry out simple job instructions, but he checked the boxes for "poor/none" with respect to Brown's ability to understand, remember, and carry out complex job instructions or detailed, but not complex, job instructions. Id . Dr. Adams checked the box indicating that Brown had a "fair" ability to maintain personal appearance, but checked the boxes for "poor/none" regarding Brown's ability to behave in an emotionally stable manner, relate predictably in social settings, and demonstrate reliability. Id . Finally, he noted that Brown had "learning disabilities that impair his ability to read [and] write" and that he "also appears to have borderline intellectual functioning." R. 291.

Brown saw Dr. Adams again on September 23, 2011, for a follow-up visit. R. 414. Brown had no suicidal ideation, was not aggressive or homicidal, and denied any perceptual disorders. R. 415. Brown told Dr. Adams he did not like the six milligram dosage of Risperdal because it made him "excited" but he was "unable to elaborate on this." R. 416. He denied having any auditory hallucinations like the ones he had reported during his last visit but said his house was "very loud." Id . He stated that he wanted to decrease his dosage of Risperdal. Id . He denied mood symptoms, but Dr. Adams found "his affect was somewhat inappropriate." Id . He denied a change in sleep, change in appetite, increased energy, or racing thoughts. Id . Dr. Adams found Brown to be euthymic, with normal psychomotor activity, as well as concrete logic and rational/non-psychotic thought content. R. 415. He found no gross deficits in attention, calculation, language, visual-motor integrity, insight, or judgment. R. 415-16. Dr. Adams found him to be a "very poor historian at times vague and contradictory" with the result that it was "difficult to make an appropriate assessment given the difficulty [Brown] ha[d] in giving a good history." R. 416.

3. Giselle Gavilanes, LCSW

Following his discharge from the hospital in February 2011, Brown also met on a number of occasions with Social Worker Giselle Gavilanes, LCSW. In a March 25, 2011 note, Gavilanes states that Brown "was referred to 7B by Orlando Gonzalez, SW from 10A on 2/18/11 after being kept in their unit from 2/9 to 2/18/11." R. 297. At the time of this interview with Gavilanes, Brown's behavior presented "normal Psychomotor Activity." Id . He had no suicidal ideations and was not "aggressive" or "homicidal." R. 296. Brown's "thought content" included "ideas of reference or influence." Id . Next to the prompt that says "Perceptual Disorders, " Gavilanes wrote, "responding to internal stimuli auditory hallucinations." Id . Under "Assessments/Plan, " Gavilanes wrote that Brown's problems were "perception disturbances in the form of auditory hallucinations (not commanding, at this time), depression, blunted affect, insomnia, energy disturbances (either lack of or sudden bursts), insecurities that lead him to interpersonal conflicts." R. 297. Brown told Gavilanes that he had "frequent arguments with the mother of his daughter" and added that he "would suddenly hear voices & suffer from headaches, hot flashes & an increase[] of feelings of insecurities." R. 298. She also wrote, "[a]s observed in this interview, the [patient's] mental status include: Alert & oriented x3." R. 297. She diagnosed Brown with "Paranoid Schizophrenia." R. 299. In a section titled "Plan, " Gavilanes wrote that Brown had been scheduled for a new patient orientation on April 6, 2011. R. 300. Brown also saw Cecila Purugganan, M.D., on March 25, 2011. R. 388-89. Brown told Dr. Purugganan that he "like[d] Risperidone and that it ke[pt] things sweet." R. 389 (internal quotation marks omitted). He denied audiovisual hallucinations and suicidal or homicidal ideation. Id . Dr. Purugganan renewed Brown's prescription for 2 mg of Risperidone. Id.

On May 16, 2011, Brown attended a psychotic disorders support group led by Gavilanes. R. 406. Gavilanes's report noted that it was Brown's first group participation and that he was "able to relate[] to the articles read & participated in the discussions in a very meaningful manner, despite his reported shyness." R. 407. She added that "[t]he grp gave [Brown] encouraging & supportive feedback." Id . A note from June 14, 2011, indicates that Brown had rescheduled an appointment. R. 408. It states that Gavilanes left a message for Brown on his cellphone, and also sent him a letter instructing him to call and set up an appointment. Id . Gavilanes's note indicates that the day before, Brown had come in but did not sit in the group because he "was upset Dr. Adams filled out SSI papers saying [Brown did not] have any physical limitations." Id . Brown apparently asked to be removed from the group. Id . The purpose of the letter was to "give [Brown] a chance to say how he wants 7B to help him other than filling out SSI papers & get antipsychotic meds." Id.

On July 13, 2011, Gavilanes followed up with Brown's psychiatrist Dr. Adams to ascertain Dr. Adams' recommended course of treatment. R. 409. She wrote, "[Brown] does not show ability to benefit from individual psychotherapy, given his Axis I & II." Id . She also wrote that "[Brown] tried psychotherapy & reported that he does not get much out of this modality, either." Id . Gavilanes's notes indicate that Dr. Adams ...

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