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Kotkowicz v. Colvin

United States District Court, W.D. New York

August 4, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

Ida M. Comerford, Esq., Jaya Ann Shurtliff, Esq., Law Offices of Kenneth Hiller, PPLC, Amherst, New York, for the Plaintiff.

Emily M. Fishman, Esq., Social Security Administration, Office of General Counsel, New York, New York, for the Defendant.


CHARLES J. SIRAGUSA, District Judge.


This is an action brought pursuant to 42 U.S.C. ยง 405(g) to review the final determination of the Commissioner of Social Security ("Commissioner" or "Defendant"), which denied the application of Katherine Kotkowicz ("Plaintiff") for Social Security Supplemental Security Income ("SSI") disability benefits. Now before the Court is Defendant's motion (Docket No. [#9]) for judgment on the pleadings and Plaintiff's cross-motion [#13] for judgment on the pleadings. Defendant's application is granted and Plaintiff's cross-motion is denied.


Plaintiff claims to be disabled due to limitations imposed by several conditions, including multiple sclerosis ("MS"), depression and headaches. Plaintiff contends that she became unable to work in 2007. On November 4, 2010, Plaintiff filed the subject application for benefits. The Commissioner denied that application, and on April 4, 2012, Administrative Law Judge Yvette Diamond ("the ALJ") conducted a hearing, at which Plaintiff appeared, with her attorney, and testified. On May 8, 2012, the ALJ issued a Decision (82-91)[1] finding that Plaintiff was not disabled at any time between November 4, 2010, the date she applied for SSI benefits, and the date of the decision.

On September 5, 2013, Plaintiff commenced this action. As will be discussed further below, Plaintiff maintains that the ALJ's finding, as to her residual functional capacity ("RFC") to perform work, was erroneous in two respects. First, Plaintiff contends that the ALJ failed to give the proper amount of weight to the opinion of a mental health counselor. Second, Plaintiff maintains that the ALJ's finding as to her credibility was not supported by substantial evidence. Plaintiff maintains that the ALJ's faulty RFC determination resulted in an improper finding that she could still perform work on a sustained basis.


At the time of the hearing, Plaintiff had completed high school and had earned an associate's degree. Additionally, shortly before the hearing, Plaintiff applied to take additional college classes. (794) Plaintiff previously worked as a retail cashier, food service worker, bartender, short-order cook and home health aide. (45-49)


Plaintiff is able to care for herself and her elderly father, with whom she lives. (54) Plaintiff performs household chores for herself and her father, such as cooking and cleaning. (54-55, 58-59) Plaintiff also occasionally takes care of the lawn and garden. (55-56) Plaintiff also watches television, goes to "chemical dependency classes, " and, occasionally, visits family or friends and attends religious services. (56-57)


Plaintiff's medical history was accurately summarized in the parties' submissions and need not be repeated here in its entirety. As noted earlier, Plaintiff suffers from a number of conditions, including MS, depression and history of drug and alcohol abuse. The Court has reviewed the entire medical record, which indicates that Plaintiff's depression was generally well controlled with medication, including Cymbalta. Plaintiff's medical providers and counselors frequently conducted mental status examinations, which were often unremarkable. For example, in 2010 staff at Unity Health System conducted several mental status examinations that were essentially normal. On April 28, 2010, Nurse Practitioner Sharon Zimmerman ("Zimmerman") conducted a mental status exam, and reported that Plaintiff's mood was neutral, her affect was appropriate and her concentration was fair. (268) On June 30, 2010, Nurse Practitioner Lisa Dennison ("Dennison") conducted a mental status exam which was essentially normal, though she indicated that Plaintiff's concentration was only "fair." (270) However, on September 29, 2010, Dennison reported that Plaintiff's mental status was generally fine, and that Plaintiff's concentration was "good." (272-273) On November 11, 2010, Kelly Collins, Ms.Ed. NCC ("Collins") reported that Plaintiff's mental status was normal, apart from the fact that Plaintiff seemed anxious and depressed. (261) Collins specifically indicated that Plaintiff had no apparent cognitive deficits. Id.

Between June 2011 and February 2012, psychiatrist Kevin McIntyre, M.D. ("McIntyre") conducted three mental status examinations, each with similar results. On February 9, 2012, McIntyre reported that Plaintiff's behavior was appropriate, her speech was normal, her thought form was logical and coherent, her thought process was unremarkable, her mood was euthymic, her affect was normal and her insight and judgment were both good. (743-744) Significantly, McIntyre found that Plaintiff had "no apparent deficit" in her cognitive abilities. (744) On November 11, 2011, McIntyre reported similar findings, though he indicated that Plaintiff's affect was "constricted, " and her mood was only "fair." (747) Again, though, he found no cognitive deficits. Id. On September 9, 2011, McIntyre reported almost identical findings, except that Plaintiff's mood was "variable" and her affect was "constricted, " although she did not seem "overly depressed." (755)

During the same period that Plaintiff was being treated by McIntyre, her mental health counselor, Marsha Reed, M.S., CMHC ("Reed"), [2] also conducted a number of mental status exams, with findings that were generally less-favorable than McIntyre's findings. (707-738) For example, Reed often indicated that Plaintiff seemed "distractible, " although she also found, on at least two occasions, that Plaintiff's cognitive abilities were fine. (723, 738) Reed also reported that Plaintiff seemed depressed at times and exhibited feelings of helplessness and worthlessness. However, it appears that Plaintiff's depressed moods during her sessions with Reed were often associated with ongoing domestic disputes that she had been having with her boyfriend over a period of years. See, e.g., 706 (counseling session focuses on relationship with boyfriend); 710 (same); 718-719 (discussing sadness over boyfriend's substance abuse and lack of commitment); 722-723 (Plaintiff was initially crying about boyfriend, but then reported being happier after realizing that she could have more control in the relationship; 727 (Plaintiff was crying and expressed feeling helpless, in connection with boyfriend's "accusations") Moreover, Plaintiff was continuing to abuse alcohol during this same period, which was causing problems in her life. See, e.g., 714 (Plaintiff reported having been beaten up while drunk, and also having been arrested for committing a crime while drunk, while still on probation from another alcohol-related crime, and expressed need to stop drinking)

On March 26, 2012, Reed completed a "Mental Residual Functional Capacity Questionnaire." (802-806) Reed's diagnosis was "major depressive disorder, [rule out] dysthymia, " though she reported that Plaintiff had a "good response to Cymbalta for depressive [symptoms]." (802) Reed summarized her clinical findings by indicatng that Plaintiff had poor concentration, was distractible, had superficial insight and fair judgment. (802) Reed indicated that with respect to performing "unskilled work, " Plaintiff would be "seriously limited"[3] with regard to working near others without being distracted, making simple work-related decision and dealing with work stress. (804) However, Reed included a disclaimer to her opinion. (804) Specifically, Reed stated that since Plaintiff had not worked in years, and since Reed had never observed Plaintiff while she was working, she could not say that her observations of Plaintiff could be "directly interpreted regarding work ability." (804)

As for Plaintiff's MS, she received ongoing treatment from neurologist Louis H. Medved, M.D. ("Medved"). Medved's office notes indicate that Plaintiff's MS was generally well-controlled with medication. See, e.g., 293 ("[S]he is doing quite well"); 295 ("[I]n general she is stable... she is stable on Copaxone"); 305 ("Ms. Kotkowicz states she is doing well.") In addition to providing Plaintiff with medication to suppress her MS symptoms, Medved also prescribed medication, to counteract Plaintiff's fatigue, which was effective. See, e.g. 305 ("Provigil apparently helps her fatigue."); 296 (Indicating that Plaintiff should keep taking Provigil for fatigue, and should exercise and lose weight); 303 (same)

On February 11, 2011, consultative examining neurologist Harbinder Toor, M.D. ("Toor") conducted an examination. Toor reported that Plaintiff's gait was normal, but that she had difficulty balancing while walking heel-to-toe. (424) Toor indicated that ...

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