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Lugo v. Colvin

United States District Court, W.D. New York

June 24, 2014

NINENA B. LUGO, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

Paul M. Ryther, Esq., East Bloomfield, New York, for the Plaintiff.

Mary C. Kane, Esq., United States Attorney's Office, Buffalo, New York, for the Defendant.


CHARLES J. SIRAGUSA, District Judge.


This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security ("Commissioner" or "Defendant"), which denied the application of Ninena Lugo ("Plaintiff") for Social Security Supplemental Security Income disability benefits. Now before the Court is Plaintiff's motion (Docket No. [#8]) for judgment on the pleadings and Defendant's cross-motion [#9] for judgment on the pleadings. Plaintiff's application is denied and Defendant's application is granted.


Plaintiff maintains that she became unable to work on November 30, 2007. (115) When Plaintiff applied for benefits, she stated that the following conditions prevented her from working: migraines, severe depression, and asthma. (115) As for how those conditions prevented her from working, Plaintiff stated: "Most days I sit and cry for no reason. I don't like to go out of the house. I can not be around a lot of people. I get nervous and sweat a lot and start crying." (115) In addition to those ailments, Plaintiff contends that she is disabled by anxiety/social phobia, shoulder pain, and back pain. Despite those problems, Plaintiff has "no difficulty" sitting or walking. (45). Plaintiff cannot lift more than five or ten pounds with her left arm, but she is right handed, and has no limitations concerning right-handed lifting. (43, 376)

On June 27, 2008, Plaintiff protectively filed for SSI benefits. (106-08, 121). On October 8, 2008, her application was initially denied. (68-71). She requested a hearing before an Administrative Law Judge ("ALJ") (Tr. 72-73), and on May 13, 2010, she appeared before the ALJ with her attorney (72-73, 35). On July 16, 2010, the ALJ issued a decision finding Plaintiff not disabled. (21-29). The ALJ found that Plaintiff could perform her past relevant work, and alternatively, that she could perform other work. Plaintiff requested review by the Appeals Council (5-16). On December 27, 2010, the Appeals Council denied Plaintiff's request for review. Accordingly, the ALJ's decision became the final decision of the Commissioner (1-4).

On January 19, 2011, Plaintiff commenced an action in this Court, challenging the Commissioner's decision pursuant to 42 U.S.C. § 405(g). See, Lugo v. Commissioner of Social Security, 11-CV-6028 CJS (W.D.N.Y.). In defending the action, the Commissioner devoted little argument to whether the ALJ had been correct to find that Plaintiff could perform her past relevant work, but argued that the ALJ had been correct in finding that Plaintiff could perform other work. On March 20, 2012, this Court issued a Decision and Order granting Plaintiff's motion for judgment on the pleadings, and remanding the matter to the Commissioner pursuant to 42 U.S.C. § 405(g), sentence four. (419). In that regard, the Court found, in pertinent part, that the ALJ should have obtained testimony from a vocational expert, rather than relying upon the "grids." On May 7, 2012, the Appeals Council vacated the ALJ's decision and remanded the matter for a new hearing. (486).

On January 23, 2013, Administrative Law Judge Brian Kane ("the ALJ") conducted a hearing.[1] Plaintiff appeared at the hearing with her attorney. On February 21, 2013, the ALJ issued a decision, finding that Plaintiff was not disabled at any relevant time, and that she could perform her past relevant work as a factory assembler, which is listed in the Dictionary of Occupational Titles ("DOT") as number 706.687-010. (338-346) On May 30, 2013, Plaintiff commenced this action, again seeking review of the Commissioner's decision. On February 24, 2014, Plaintiff filed the subject motion [#8] for judgment on the pleadings, and on March 18, 2014, Defendant filed the subject cross-motion [#9]. On June 5, 2014, counsel for the parties appeared before the undersigned for oral argument.


At the first hearing, Plaintiff indicated that she completed three semesters of college, studying business administration. (41, 237). She further indicated that in the Spring of 2009, she began taking online classes, but that in or about September 2009, she stopped taking classes because she was distraught over being the victim of a crime some months earlier. (298) At the second hearing, Plaintiff indicated that she finished a year of college and never went back. (363)

Plaintiff's longest period of employment, lasting approximately one year, was as a deli worker in a supermarket, making pizza and salad, and cutting meats. (116) Such work involved standing for eight hours per day, frequently lifting up to ten pounds, occasionally lifting up to twenty pounds, and handling and reaching. (116-117) Plaintiff also worked as a "Medical Counselor II, " for about a year, working with persons with developmental disabilities. (116, 359) That job required Plaintiff to lift up to 200 pounds. (359) Plaintiff has also been employed as a retail customer service representative/cashier, a home health aide, and a cafeteria worker. (131-132).

In 2003, Plaintiff worked in a factory manufacturing batteries. (37-38) Plaintiff stayed at that job "[a]lmost... a whole year, " but quit when she became pregnant because "chemicals" were making her sick. (38, 358, 360) Subsequently, Plaintiff worked for a few months as a "child care worker, " but apparently left that job because it did not provide her with enough hours. (115) Plaintiff's last employment ended on August 15, 2004. (115).

Plaintiff did not leave any of her jobs due to her claimed impairments. Instead, Plaintiff indicates that the onset of her disability occurred in November 2007, several years after she last worked at any job.


Plaintiff is able to care for herself and her four young children, with occasional help from her mother. (505) Plaintiff indicates that she does not leave the house much, and that friends visit her to socialize and watch television. (44, 507)


Plaintiff's medical history was summarized in the parties' submissions and need not be repeated here in its entirety. It is sufficient for purposes of this Decision and Order to note the following facts. Plaintiff's primary care providers are Dong Gi Hong, M.D. ("Hong") and nurse practitioner Rena Reed, MSNP ("Reed"), although she is mainly seen by Reed. (133) Reed treats Plaintiff for asthma, allergies, anxiety, back and shoulder pain and depression. (134-135) Plaintiff also sees neurologist Eugene Tolomeo, M.D. ("Tolomeo") for migraine headaches. (126) Plaintiff has also seen orthopedists Daniel Alexander. M.D. ("Alexander") and David Cywinski, M.D. ("Cywinski") for pain and dislocation in her left shoulder. (133) Plaintiff has also been treated by therapist Eileen Ersteniuk, CSWR ("Ersteniuk"), psychiatrist Royle Miralles, M.D. ("Miralles") and nurse practitioner Lauren Morgan, NP, ("Morgan") at Wayne Behavioral Health Network for depression and anxiety. (139)

Plaintiff takes Albuterol and Flovent for asthma, Zyrtec for allergies, and Neurontin for anxiety. (134) Plaintiff also takes Tylenol #3 for back and shoulder pain and Topamax for headaches. (135) Topamax is an anti-seizure medication that is used prophylactically to prevent migraine headaches from occurring. Plaintiff also takes Naprosyn (Aleve), a nonsteroidal anti-inflammatory drug, when headaches occur, and Effexor for depression. (136)

On September 22, 2004, Plaintiff, who had given birth in June 2004, complained to Reed about headaches. (187-188) Plaintiff reported that she had severe headaches during the pregnancy and was now having them again, with blurred vision and occasional nausea. (188) Plaintiff also complained of pain in both ears. Id. Reed's impression was acute sinusitis (sinus infection). Id.

On February 9, 2005, Plaintiff told Hong's office that her left shoulder had popped out of its socket the previous day, apparently while she was trying to prevent herself from falling. (186)

On February 27, 2006, Plaintiff had diagnostic testing of her lumbosacral spine, after she complained of pain resulting from a fall four days earlier. (227) The testing was normal, with no degenerative disease or other problems observed. Id.

On March 27, 2007, Tolomeo examined Plaintiff in connection with her complaints about headaches. (283) Tolomeo indicated that he had been "following" Plaintiff "for quite some time for headaches, " and that he "had them under control during her last visit, " the date of which is unclear. Id. Plaintiff told Tolomeo that she was then having headaches every day, ranging in severity from 4/10 to 10/10. Id. Plaintiff's mental status was normal. Id. Tolomeo indicated that Plaintiff had "chronic migraine headaches, " which were "tension type headaches." Id. Because Plaintiff was pregnant, Tolomeo indicated that his treatment options were limited. Id. However, he prescribed magnesium oxide to prevent headaches, and told Plaintiff that she could take Tylenol #3 for pain if needed. Id.

In August 2007 Plaintiff began receiving counseling for depression at Wayne Behavioral Network. (118) On September 14, 2007, Ersteniuk conducted an assessment for services. (154-162) At that time, Plaintiff was pregnant and due to give birth to her third child later that month. (155) Plaintiff indicated that she never previously received any psychiatric treatment. (154) Ersteniuk reported that Plaintiff had good communication skills. (158) Ersteniuk further noted that Plaintiff was well groomed and calm, with appropriate affect, spontaneous speech, and focused thoughts. (160) Plaintiff's mood was "anxious." Id. Plaintiff's orientation, memory and concentration were intact, though her insight and judgment were limited. Id. As for her reason or goal for seeking treatment, Plaintiff stated that she was having problems with her boyfriend and wanted to learn how to communicate more effectively with him. (161) In that regard, she stated that she wanted to learn to control her anger and express her feelings. Id. Ersteniuk opined that Plaintiff had a total Global Assessment Functioning ("GAF") score of 55, based on depressed mood and moderate problems in social functioning. Id.

On October 25, 2007, Plaintiff told Reed that her headaches were "terrible." (182) Again, Reed's impression was "acute sinusitis" (sinus infection). Id. Reed noted that Celebrex did not appear to be helping, and she prescribed another medication. On October 30, 2007, Plaintiff had a CT scan of her head, to attempt to determine the cause of her headaches, which was negative. (223)

On December 6, 2007, Miralles conducted a psychiatric assessment. (163-166) Plaintiff stated that she had felt depressed for 18 months, particularly near the end of her pregnancy. (163) After the birth of her third child in or about September 2007, Plaintiff stated that she had frequent crying spells and felt irritable and apathetic. Id. She stated that she had suicidal ideation in November 2007, and was experiencing anxiety. Id. Plaintiff stated that she felt stressed because her mother had been diagnosed with cancer, her boyfriend was depressed, and she did not feel that she was adequately caring for her children or boyfriend. Id. Plaintiff reported a history of physical and sexual abuse as a child. (164) Plaintiff's grooming and hygiene were poor, but her mental functioning was normal, though she felt depressed. (165) Plaintiff expressed fear of being alone, and stated that she had difficulty falling and staying asleep. Id. Miralles prescribed Paxil and directed Plaintiff to continue therapy with Ersteniuk. (166)

On December 7, 2007, Morgan completed a Diagnostic Review form. (167-168) Morgan indicated that Plaintiff's diagnosis was major depressive disorder, single episode. (167) Morgan noted that Plaintiff, who had a history of depression, was "struggling with single parenting and trying to work on her relationship." (168)

On September 15, 2008, Plaintiff reported to Hong's office that her "migraines [were] more frequent and worse when [she] has one." (179)

On September 26, 2008, Plaintiff was examined by Harbinder Toor, M.D. ("Toor"), a non-treating consultative internist. (233-236) Plaintiff told Toor that her chief complaint was migraine headaches, though she also complained of depression and asthma. (233) Plaintiff apparently did not complain of any problems with her shoulder or back, and Toor reported that Plaintiff's physical examination was normal. (234-235) In that regard, Toor indicated that Plaintiff had full range of movement and full strength in all her extremities, including full range of movement in her shoulders, and full flexion and rotary movement in her lumbar spine. (235) Additionally, the straight leg raising test was negative bilaterally. Plaintiff told Toor that she was able to care for herself and her children and perform all household chores. (234) With regard to headaches, Plaintiff indicated that she had "migraines since she was 15 years old, " and was having them "every day." (233) Plaintiff stated that the pain was sometimes 10 out of 10, with nausea and sensitivity to light. Id. Plaintiff reported that she treated the headaches by taking medication and lying down. Id. Toor opined that Plaintiff's headaches "can interfere with her routine, " and that she should avoid irritants that could bother her asthma. (236)

On September 26, 2008, Plaintiff was given a psychiatric evaluation by Christine Ransom, Ph.D. ("Ransom"), a non-treating consultative examiner. (237-240) Plaintiff reportedly told Ransom that she had been unable to work due to "severe depression." (237) Plaintiff indicated that her medical conditions consisted of "headaches and asthma." (237) Plaintiff complained of difficulty falling asleep, erratic appetite, crying spells, irritability, and low energy. (238) Plaintiff indicated that she spent most of her time caring for her three children. (238) Plaintiff complained of difficulty concentrating for long periods.[2] Plaintiff stated that she became "anxious" around strangers, but denied any "generalized anxiety, panic attacks, manic symptomatology, thought disorder, cognitive symptoms and deficits." (238) Upon examination, Ransom found that Plaintiff's thoughts were "[c]oherent and goal directed with no evidence of hallucinations, delusions or paranoia." (238) Plaintiff's affect and speech were "moderately dysphoric." (238) Plaintiff's attention, concentration, and memory were intact, her cognitive functioning was average, and her insight and judgment were good. (239) Ransom concluded that Plaintiff could understand and follow simple directions, perform simple tasks, maintain attention and concentration for simple tasks, and learn new simple tasks. ...

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