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Kelly v. Astrue

United States District Court, W.D. New York

July 18, 2014

SCOTT J. KELLY, Plaintiff,


MARIAN W. PAYSON, Magistrate Judge.


Plaintiff Scott J. Kelly ("Kelly") brings this action pursuant to Section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security (the "Commissioner") denying his application for Disability Insurance Benefits ("DIB"). Pursuant to 28 U.S.C. § 636(c), the parties have consented to the disposition of this case by a United States magistrate judge. (Docket # 9).

Currently before the Court are the parties' motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket ## 11, 14). For the reasons set forth below, this Court finds that the decision of the Commissioner is not supported by substantial evidence in the record. Accordingly, the Commissioner's decision is vacated, and this claim is remanded solely for the calculation and payment of benefits.


I. Procedural Background

Kelly applied for benefits on August 25, 2009, alleging he had been disabled since September 29, 2008 due to bipolar disorder, mixed affective state and headaches. (Tr. 137, 141-151).[2] On February 26, 2010, the Social Security Administration denied Kelly's claim for disability benefits, finding that he was not disabled. (Tr. 77). Kelly requested and was granted a hearing before Administrative Law Judge Thomas P. Tielens (the "ALJ"). (Tr. 84, 105-09). The ALJ began a hearing in Corning, New York on February 28, 2011. (Tr. 27-34). During the hearing, Kelly requested an adjournment in order to permit him to retain counsel to represent him. (Tr. 29-30). The ALJ granted the request and conducted a subsequent hearing on June 13, 2011 in Corning, New York. (Tr. 30, 35). Kelly was represented at the hearing by his attorney, David Ralph, Esq. (Tr. 35). Kelly and his wife, Aislinn Kelly, testified during the hearing. (Tr. 35, 62-74). In a decision dated July 12, 2011, the ALJ found that Kelly was not disabled and was not entitled to benefits. (Tr. 14-22).

On July 18, 2012, the Appeals Council denied Kelly's request for review of the ALJ's decision. (Tr. 1-5). Kelly commenced this action on September 9, 2012 seeking review of the Commissioner's decision. (Docket # 1).

Kelly filed a subsequent application for benefits that was granted on February 1, 2013. (Docket # 14 at 1). According to Kelly, the Commissioner found him disabled beginning on July 13, 2011, the day after the ALJ's decision. ( Id. ). Accordingly, the relevant period under consideration for this appeal is September 29, 2008 until July 12, 2011.

II. Non-Medical Evidence

A. Kelly's Application for Benefits

Kelly was born on December 13, 1969 and is now forty-four years old. (Tr. 137). Kelly graduated from high school in a regular class setting in 1988 and completed one year of college. (Tr. 149, 480). According to Kelly, in 1999, he also received information technology ("IT") and network technology training and attended VESID Elmira. (Tr. 149-50).

Kelly's previous work history includes employment as stock clerk, energy manager, job coach, factory worker, IT personnel, collection agent and customer service agent. (Tr. 143). After graduating from high school, Kelly enlisted in the Navy and served until he was honorably discharged in 1992. (Tr. 265). In 1994, Kelly worked as stock clerk in a retail store and in energy management for an electrical firm. (Tr. 143). The following year, Kelly was employed as a job coach for an agency. ( Id. ). From 1996 through 1999, Kelly was employed as a factory worker for a manufacturing business. ( Id. ).

Kelly was next employed from 2000 through 2003 as an IT customer support person. (Tr. 143, 190). According to Kelly, he was responsible for working with approximately 140 sales persons to address technology-related issues relating to computers, software, hardware and networking. (Tr. 143). Kelly reported that his employment ended when the company went out of business. (Tr. 40-41). According to Kelly, at the time, he weighed over 500 pounds and was released from employment because he could not perform his duties. ( Id. ).

In 2006, Kelly was employed at Corning Incorporated as an IT customer service support person. (Tr. 49-50, 143, 190). According to Kelly, his supervisor at Corning referred him to counseling in order to address Kelly's difficulties managing stress. (Tr. 49-50). Kelly testified that he experienced an emotional breakdown at work, causing his primary care physician to excuse him from work for five days. (Tr. 51). At the time, Kelly was a probationary employee and, upon his return to work, Corning terminated his employment. ( Id. ). During the latter part of 2006, Kelly was employed as a collection agent. (Tr. 143, 190). From March 2008 through September 2008, Kelly was employed at Sitel Corporation, as the supervisor of a twenty-employee call center that provided customer service for Verizon Wireless warranties. (Tr. 46-47, 143, 167, 190). According to Kelly, he was terminated from this position after a confrontation with a coworker. (Tr. 46-47). Kelly has not been employed since. (Tr. 40).

When Kelly applied for disability benefits, he lived with his wife, Aislinn Kelly ("Aislinn"). (Tr. 152-53). Kelly reported that his daily activities included showering, dressing, taking medications, eating breakfast, lunch and dinner, attending appointments with his doctor, reading, sleeping, attempting to maintain focus and mood, studying the bible and conversing with his wife. (Tr. 153). According to Kelly, he is able to complete personal hygiene tasks without assistance, can perform household chores, including dishes, laundry and vacuuming, and can prepare simple meals. (Tr. 153-55). Kelly reports that he needs assistance with some household tasks because he will forget things. (Tr. 155). Kelly reports short-term memory difficulties which necessitate reminders to take his medication or to stay on task and which hinder his ability to prepare more complex meals. Kelly and his wife shop for groceries and household items approximately once a week, and Kelly is also able to purchase items online. (Tr. 156).

According to Kelly, he has difficulty focusing, remembering things and controlling his mood. (Tr. 153, 157-59). Kelly believes that his inability to control his emotions has caused him to be terminated from several jobs. ( Id. ). Kelly reports that he has difficulty sleeping and that his "mind will not shut down." ( Id. ). In addition, according to Kelly, although his medications help to control his emotions, they also make it difficult to focus for concentrated periods. (Tr. 156). Kelly reports that his mood swings and his inability to focus and get along with others have caused him to limit his activities outside of his home and have made it difficult to maintain employment. (Tr. 157).

According to Kelly, at the time of his application he had a suspended driver's license. (Tr. 155). Kelly is able to pay bills, count change and handle a savings account, although he has difficulty remembering to pay bills. (Tr. 156). In addition, Kelly has difficulty handling a checkbook because he forgets to record his transactions. ( Id. ). According to Kelly, his wife now handles the family finances. ( Id. ). Kelly reports that he is able to follow written and verbal instructions, but needs frequent reminders to complete tasks due to his inability to maintain focus. (Tr. 158-59).

Kelly leaves the house at least once a day to go for a walk. (Tr. 155). He spends his time attending bible study with his wife, watching television and visiting his brother and his children. (Tr. 157). According to Kelly, he can walk approximately twenty minutes before needing a five or ten minute break. (Tr. 158).

After the initial denial of benefits, Kelly supplemented his disability application on March 31, 2010. (Tr. 172-79). According to that application, Kelly experienced increased mania, shaking in his hands and numbness in his legs. (Tr. 173). In addition, Kelly reported that he had been diagnosed with bipolar disorder, anxiety disorder and post-traumatic stress disorder. ( Id. ). According to Kelly, his extreme anxiety prevented him from participating in any group gatherings and the numbness in his legs decreased his ability to stand or walk for any length of time. (Tr. 176). Kelly reported that he had recently been referred to a new therapist to treat his mental disorders, including therapy to address his recently-recalled memories of abuse he suffered as a child. (Tr. 178). According to Kelly, he was prescribed lithium carbonate as a mood stabilizer to control his bipolar symptoms and to manage his anger. (Tr. 192). In addition, Kelly was taking Abilify, Zoloft and Lorazepan to address his anxiety and depression. ( Id. ). Finally, Kelly was prescribed Trazodone as a sleep aid. ( Id. ).

B. The Disability Analyst's RFC Assessment

On February 26, 2010, disability analyst M. Bliznik ("Bliznik") completed a non-severe impairment checklist. (Tr. 291). Bliznik opined that Kelly did not suffer from abnormalities in any of his physical functions, including walking, lifting, reaching, seeing, standing, pushing, carrying, hearing, sitting, pulling, handling or speaking. ( Id. ). According to Bliznik, although Kelly complained of hand tremors and leg numbness, Kelly had not been fully evaluated for those symptoms. ( Id. ).

III. Medical Evidence

In October 2005, Kelly underwent gastric bypass surgery at Strong Memorial Hospital to address his morbid obesity, diabetes and hypertension. (Tr. 354-443). In January 2006, Kelly returned to Strong Memorial Hospital for surgery to remove a pituitary tumor. (Tr. 444-48).

Kelly apparently began receiving mental health treatment in July 2006 from Andrea Cohen ("Cohen"), a licensed social worker at the Clinical Associates of the Southern Tier. (Tr. 449-58). During the initial meeting, Kelly reported that he had had a bad weekend that involved a fight with his significant other and over-consumption of alcohol. (Tr. 458). Kelly reported that he attempted to "play chicken" in road traffic, which resulted in police being dispatched to the scene. ( Id. ). Cohen suggested couples counseling. ( Id. ).

Cohen's intake form dated September 5, 2006, indicates that Kelly had recently begun a new job at Corning and had been referred to counseling by his supervisor. (Tr. 453). At the time, Kelly was recently divorced and living with his new girlfriend. ( Id. ). Kelly reported significant credit card debt and problems in his personal life that had affected his relationship with his coworkers. ( Id. ). According to Kelly, he began to isolate himself at work because some of his coworkers were sharing his personal information with others. ( Id. ). Kelly reported that he consumed a "couple" of glasses of wine each week, but did not suffer from substance abuse. (Tr. 454). Cohen noted that Kelly had a flat affect, normal speech, dysphoric mood, appropriate thought content, good judgment, unimpaired memory and appropriate impulse control. ( Id. ).

On September 19, 2006, during another session with Cohen, Kelly reported that he had substantial credit card debt and was working with a debt consolidation firm to manage the debt. (Tr. 452). Kelly reported that he was experiencing stress at home because of the relationship between his current girlfriend and his children, and also reported stress arising from work issues. ( Id. ). According to Kelly, he did not trust his supervisor to keep his information confidential. ( Id. ).

Kelly had another appointment with Cohen on September 26, 2006. (Tr. 451). Kelly reported experiencing overwhelming feelings of depression at work, which caused him to leave work at 11:00 a.m. ( Id. ). Kelly reported suicidal thoughts and feelings of helplessness and was unable to make eye contact with Cohen. ( Id. ). Cohen suggested that Kelly contact his primary care physician to discuss his medications, begin looking for other employment and go to the hospital if his depression worsened. ( Id. ).

At an October 3, 2006 appointment with Cohen, Kelly reported that he had visited Dr. Burke, his primary care physician, who increased Kelly's prescription for Zoloft, prescribed Welbutrin and excused Kelly from work for three days. (Tr. 450). Kelly reported that when he returned to work, he was terminated due to issues with a credit card. ( Id. ). According to Kelly, he was in the process of trying to address those issues when he was terminated. ( Id. ). Kelly reported experiencing mood swings and repeated suicidal thoughts. ( Id. ). Cohen reported that Kelly's affect had brightened by the end of the session. ( Id. ).

Kelly's final appointment with Cohen was on October 31, 2006. (Tr. 449). During that session, Kelly reported some positive developments. ( Id. ). According to Kelly, he had filed a harassment petition against his ex-wife and was taking her to court to address visitation issues, and would be starting a new job soon. ( Id. ). Kelly reported that his depression and anxiety stemmed from his job at Corning. ( Id. ). According to Kelly, he still struggled with his body image and headaches. ( Id. ). Kelly reported taking oxycodone to manage the headaches. ( Id. ).

The record does not reflect any medical treatment for the next two years. On October 13, 2008, Kelly had an appointment with Beth Lynn De Vries "(De Vries"), a nurse practitioner at Arnot Medical Service, where Kelly's primary care physician, Robert E. Burke, M.D. ("Burke") practiced. (Tr. 211-12). Kelly complained of nasal congestion and throat and mouth symptoms. ( Id. ). Kelly reported minimal alcohol consumption and that he was married and living with his spouse. ( Id. ). De Vries instructed Kelly to increase his fluids and to manage his symptoms with nasal saline, Tylenol and over-the-counter medication. ( Id. ).

The following year, in June 2009, Kelly was transported to the emergency room at the Corning Hospital for a mental health evaluation by the police after a reported suicide attempt. (Tr. 213-31). Treatment notes indicate that Kelly was arrested after a reported domestic violence incident on June 3, 2009. (Tr. 214). According to the police, Kelly attempted to hang himself with his pants while at the police station. ( Id. ). Kelly reported prior suicide attempts and feeling very depressed. ( Id. ). According to Kelly, although he had been prescribed Zoloft and Wellbutrin, he had not been taking his medication. ( Id. ). Lab results indicated that Kelly had an elevated level of alcohol in his system. (Tr. 215). Kelly was transferred to St. Joseph's Behavioral Science Unit ("St. Joseph's") on a mental health commitment. (Tr. 215-16).

Upon admission to St. Joseph's, Kelly was diagnosed on Axis I with "major depressive disorder, recurrent, alcohol dependence, impulse control disorder, exacerbated by drinking." (Tr. 232). At Axis IV, Kelly's major stressors included his unemployment, homelessness, order of protection prohibiting contact with his wife, and history of domestic violence related to alcohol consumption. ( Id. ). Upon admission, Kelly's GAF was 36. (Tr. 238).

During intake, Kelly reported his family history. (Tr. 237). According to Kelly, his mother remarried multiple times during his childhood, and he experienced a close relationship with his brother during childhood. ( Id. ). Kelly reported that he has two sons with his first wife. ( Id. ). According to Kelly, he married his current wife, Aislinn, in 2007. ( Id. ). Aislinn has a five-year-old son who lives with them. ( Id. ). Kelly reported that he and his wife were both unemployed. ( Id. ). According to Kelly, he used to consume approximately two or three glasses of wine every night, but he and his wife together currently consume approximately three or four liters of wine daily. (Tr. 236). Kelly stated that he had not been taking his medications because he had no insurance and could not pay for them. (Tr. 235). Kelly also reported that he experienced headaches approximately two or three times per month since he had undergone surgery to remove a pituitary tumor. (Tr. 237).

Kelly spent approximately twenty-two days at St. Joseph's. (Tr. 232). During that time, he attended individual and group therapy sessions and was prescribed medication to address his mental health issues. (Tr. 233). Kelly was discharged from St. Joseph's on June 25, 2009. (Tr. 232). Upon discharge, Kelly was referred to the New Dawn Program at St. Joseph's to complete a rehabilitation program, following which he was to be referred to an outpatient mental health provider. (Tr. 233). Kelly was prescribed Depakote, Zoloft, coral calcium and alfalfa. ( Id. ). His diagnosis at discharge included "major depressive disorder, recurrent, alcohol dependence, rule out bipolar disorder, not otherwise specified, intermittent explosive aggressive disorder" and his GAF was assessed at 55. (Tr. 232).

Kelly attended the inpatient rehabilitation program from June 25, 2009 through July 23, 2009. (Tr. 250). Kelly successfully completed the program and was discharged after meeting his treatment care goals. (Tr. 251). Upon discharge, Kelly was referred to Steuben County Alcohol and Substance Abuse Services for outpatient rehabilitation treatment. ( Id. ).

On July 6, 2009, while still in the inpatient rehabilitation program, Kelly was referred to outpatient mental health treatment at the VA Medical Center located in Bath, New York ("Bath VA"). (Tr. 349). Initially, Kelly met with Karen M. Aikman ("Aikman"), a licensed social worker and suicide prevention coordinator. (Tr. 353). Kelly's initial diagnosis was bipolar disorder and alcohol dependence with a GAF of 40. (Tr. 352).

Kelly participated in another session with Aikman on July 8, 2009. (Tr. 344). During that session, Kelly reported his history of depression, alcohol use and anger management issues. (Tr. 345). According to Kelly, his symptoms worsened while he worked at Corning in 2006. During that time, he was going through a divorce from his first wife. ( Id. ). Kelly maintained that his wife's behavior and frequent phone calls to Kelly at work caused his termination from employment with Corning. ( Id. ). According to Kelly, he married his current wife, Aislinn, in 2007. (Tr. 347). Kelly reported that Aislinn has four children, but only one, a five-year-old son, currently lives with them. ( Id. ). Kelly also reported that his mother passed away in 2007. (Tr. 346). Kelly stated that he was physically abused by his aunt and uncle when he was nine years old. ( Id. ). According to Kelly, the abuse continued until he was sixteen years old. ( Id. ). Kelly reported that his mood had improved since he started taking Depakote. ( Id. ).

On August 18, 2009, Kelly had an appointment with Burke. (Tr. 207-10). Kelly explained to Burke that he had recently been discharged from inpatient treatment. (Tr. 208). Burke recommended that Kelly continue with his current medications, refrain from alcohol, continue to meet with his mental health providers and attend Alcoholics Anonymous ("AA") meetings. (Tr. 209). Burke advised Kelly to return in one year or as needed. ( Id. ).

On October 8, 2009, Kelly attended an appointment with Kaushalya A. Kumar ("Kumar"), a psychiatrist practicing at the Bath VA. (Tr. 341, 344). Kumar noted that Kelly had a history of bipolar disorder, alcohol dependence and compulsive gambling. (Tr. 341). Kelly reported that he had consumed only one glass of wine since his completion of the New Dawn rehabilitation program. ( Id. ). Kelly reported that he lost his Medicaid coverage on September 23, 2009 and had been off of his medications since that time. (Tr. 341-42). According to Kelly, in the absence of medication, he felt more depressed and irritable and experienced difficulty sleeping. (Tr. 341). Kelly reported ongoing stress, particularly due to his unemployment and financial situation, but stated that he had not had any suicidal impulses. ( Id. ).

Kumar's notes indicate that Kelly presented a constricted affect with a depressed and anxious mood. (Tr. 343). According to Kumar, Kelly frequently lost his train of thought and complained of racing thoughts. ( Id. ). Kumar opined that although Kelly's memory was fair, his attention and concentration were impaired. ( Id. ). Kumar diagnosed Kelly with bipolar disorder, mixed affective state and alcohol dependence, now in remission. ( Id. ). Kumar assessed Kelly's current GAF at 55. ( Id. ). Kumar reinstated Kelly's medications, prescribed Sertraline and recommended a follow-up appointment in two weeks. (Tr. 343-44). Kumar also suggested that Kelly begin receiving primary care through the Bath VA because he no longer had insurance to cover the expense of a private primary care physician. ( Id. ). Kumar opined that Kelly's mood was a mixed affective state that required stabilization. ( Id. ). Kumar opined that Kelly was "currently unemployable." (Tr. 344).

Kelly met again with Kumar on October 23, 2009. (Tr. 340). Kelly reported that his mood was beginning to stabilize with the medications, but that he was drowsy. ( Id. ). Kelly reported ongoing stress caused by his financial situation. ( Id. ). Kumar discussed the possibility of Kelly applying for temporary disability until his moods could be stabilized. ( Id. ). Kumar prescribed Divalproex to be taken at bedtime. (Tr. 341).

On the same date, Kelly had an appointment with Dr. Kevin Ott ("Ott") to assess his physical condition. (Tr. 336). Ott noted that Kelly exhibited tremors that could be caused by earlier alcohol abuse and recommended a neurological opinion. (Tr. 339). Ott reviewed the health risks associated with obesity and ...

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