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Hernandez v. Colvin

United States District Court, S.D. New York

August 7, 2014



ROBERT P. PATTERSON, Jr., District Judge.

The Plaintiff Maria Hernandez brings this action under the Social Security Act (the "Act"), 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Social Security Commissioner (the "Commissioner") to deny her application for disability insurance benefits. On February 6, 2012, Administrative Law Judge Gitel Reich (the "ALJ") found that the Plaintiff was not disabled within the meaning of the Act. The Appeals Council (the "Council") denied the request for review, which made the ALJ's decision the final determination. See Perez v. Chater , 77 F.3d 41, 44 (2d Cir. 1996); 20 C.F.R. §§ 404.981. Both parties now move for judgment on the pleadings. For the reasons discussed herein, the Commissioner's motion for judgment on the pleadings is DENIED and the Plaintiff's motion for judgment on the pleadings is GRANTED to the extent of remanding the case to the Commissioner.


A. Procedural History

On March 29, 2011, the Plaintiff filed concurrent applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). (Soc. Sec. Admin. R. ("R.") at 110, Oct. 1, 2013, ECF No. 9.) The applications were denied on May 18, 2011. (R. at 61-68.) On January 5, 2012, the ALJ, Gitel Reich, held a hearing, at which an attorney, Bryce Kirshbaum, represented the Plaintiff. (R. at 41-58.) On February 6, 2012, the ALJ's written decision found the Plaintiff not disabled within the meaning of the Act. (R. at 28-37.) On March 18, 2013, the Council denied review, at which point the ALJ's decision became the Commissioner's final decision. (R. at 5-10.)

The Plaintiff filed a timely motion for judicial review pursuant to 42 U.S.C. § 405(g) on October 30, 2013. (Pl.'s Mem. of L. in Supp. of Mot. for J. on the Pleadings ("Pl.'s Mem."), ECF No. 12.) The Defendant answered on March 19, 2014 that the Commissioner's decision was supported by substantial evidence and without legal error, and cross moves for judgment on the pleadings. (Def.'s Mem. of L. in Supp. of the Cross-Mot. for J. Pleadings & in Opp'n to Pl.'s Mot. for J. on the Pleadings ("Def.'s Mem."), ECF No. 20.) The Plaintiff replied on April 1, 2014. (Pl.'s Reply Mem. of L. in Supp. of Mot. for J. Pleadings ("Pl.'s Reply"), ECF No. 22.)

The issue before this Court is whether the Commissioner's decision that the Plaintiff was not disabled during the relevant time period is supported by substantial evidence and without legal error.

B. Non-Medical Evidence Before the Administrative Law Judge

The Plaintiff was born February 29, 1964 in the Dominican Republic. (R. at 110, 257.) She was forty-seven years old at the time of her application. She has an 11th grade education (R. at 187), and communicates in Spanish. (R. at 43). On June 26, 2010, the Plaintiff's 18-year-old son died in a car accident. (R. at 47.) This event triggered the Plaintiff's alleged disability.

Before her alleged disability, the Plaintiff reported that she was able to "bathe daily, work, exercise, read, dance, [go] outside, sleep good [sic], [and] have [a] good appetite." (R. at 157.)[1] She worked steadily at assorted jobs, including jobs in maintenance at an apartment building, as a housekeeper at a hotel, and as a child care provider at a day care. (R. at 169.) These jobs all involved the lifting of ten to twenty pounds. (R. at 170-75.) Except for the Plaintiff's child care work, these previous positions required her to stand most of the day. (R. at 170-75.)

After her son's death in 2010, the Plaintiff began to experience an increase in anxiety, depression, and fatigue, along with a decrease in energy and appetite. (R. at 164.) She reported that these symptoms limited her ability to function as before. The Plaintiff reported that she could feed herself simple meals, such as cold cereal and mashed potatoes, on a daily basis- though she often lacked the energy and appetite. (R. at 158.) She stated that her daughter helps her clean, and does the laundry and ironing. (R. at 159.) The Plaintiff reported that she attends therapy appointments twice a week, and church once a week, by riding the bus; however, she never goes alone because she is "always nervous" and forgets stops and directions. (R. at 159).

At the hearing before the ALJ, the Plaintiff testified that, since her symptoms began, she has held only one job as a bus attendant in September and October of 2010. (R. at 49-50.) The Plaintiff claimed that she left because she kept forgetting to help children cross the streets. (R. at 49-50, 140.) The Plaintiff testified she has not engaged in any other type of work (R. at 49), and is unable to work because she "forgets everything and cries all day" (R. at 51). She reported that she has difficulty completing tasks, concentrating, and following spoken instructions. (R. at 163-164.) She reported that she can follow written instructions, however. (R. at 163.)

The Plaintiff began receiving treatment a few months after her son's death. (R. at 189, 253.) The Plaintiff testified that her depression and anxiety, with medications, has improved "a little bit." (R. at 48.) Her anxiety attacks occur daily and last for fifteen minutes or longer until the pills stop it. (R. at 164-65.) She testified that her sessions with the psychologist were helpful. (See R. at 49.)

The Plaintiff testified that she is able to leave her home to attend church and meet with doctors, but that she is always accompanied by her younger daughter, with whom she lives. (R. at 52.) Her daughter and her mother take care of home maintenance. (R. at 53.) The Plaintiff testified that she spends the day watching television, praying, and reading the Bible. (R. at 53.) She experiences serious episodes of depression about three times a week, in which she spends the day in bed with the lights off. (R. at 54.) On better days, she can prepare simple meals for herself, but otherwise, her daughter or mother provides food. (R. at 54.) She testified that in an eight-hour day, she can stand or sit for about three hours. (R. at 55.) She cannot lift a gallon of milk. (See R. at 55.)

C. Medical Evidence before the Administrative Law Judge

The record contains medical files from both treating and non-treating physicians, who treated or evaluated the Plaintiff between October 2010 and December 2011.

1. Dr. Claudia Patino

The Plaintiff was treated by Dr. Claudia Patino, a psychologist, on a biweekly basis beginning October 11, 2010. (R. at 255.) Dr. Patino's notes summarizing the therapy sessions from March to August 2011 are contained in the record. During that period of time, Dr. Patino found the Plaintiff's Global Assessment Functioning ("GAF") score to be in the range of 55 to 57.[2] (R. at 257-270.) Throughout their relationship, Dr. Patino described the Plaintiff's reported symptoms as "daily sadness and crying, little interest in anything, insomnia, forgetfulness, lack[] [of] energy, [and] intrusive thoughts of [the Plaintiff's] son and finding him dead." (R. at 257.) Dr. Patino also reported that the Plaintiff was "initially.... fearful of being home alone, [that she] worrie[d] about [her] daughters' safety, and [was] overprotective [and] fearful of trains." (R. at 257.)

Dr. Patino also catalogued the Plaintiff's signs of improvement. She reported that on March 17, 2011, the Plaintiff had engaged in "behavioral activation" by spending time with her daughter, visiting her priest, and arranging a birthday party for a friend. (R. at 258.) According to Dr. Patino, the Plaintiff reported that her anxiety was less intense and that the prescribed medications were helping. (R. at 258.) On April 28, 2011, Dr. Patino described additional signs of improvement despite the ongoing depression: the Plaintiff "finally cooked on two occasions, " "kept a log of her thoughts, " and tried to spend time with her family instead of isolating herself. (R. at 262.)

Throughout the notes, Dr. Patino reported that the Plaintiff experienced obsessive thoughts about her son, who had died on the day of his graduation ceremony. (See, e.g., R. at 260, 263.) However, on May 19, 2011, Dr. Patino noted that the Plaintiff was able to attend two graduation ceremonies with her family, even if doing so prompted memories of her son. (R. at 263.) While Dr. Patino expressed concern on June 2, 2011 that the Plaintiff's thoughts of her son were beginning to show "psychotic quality, " (R. at 265), a few weeks later, Dr. Patino reported that the Plaintiff denied that any psychotic features were linked with her depression and reported her guilty ruminations about her son had decreased. (R. at 266.)

According to Dr. Patino's report, a few days before the upcoming anniversary of her son's death, the Plaintiff reported that she had been feeling less depressed and anxious. (R. at 266.) In the month after the anniversary, the Plaintiff reported that she was more active-going to church more, spending more time with her family, and praying often. (R. at 267.)

On December 22, 2011, a few weeks before the hearing, Dr. Patino wrote that the Plaintiff described "continued depression especially during [the] recent holidays." (R. at 300.) On that day, Dr. Patino assigned to the Plaintiff a GAF score of 52, which was lower than any GAF score the Plaintiff had previously been assigned. Dr. Patino also wrote a letter detailing the Plaintiff's reported symptoms.[3] (R. at 255.) Dr. Patino concluded that the Plaintiff's severe depression inhibited the Plaintiff's ability to work at the time. (R. at 255.)

2. Dr. Daniel Pilowsky

The Plaintiff also received treatment from Dr. Daniel Pilowsky, a psychiatrist, on a monthly basis during roughly the same period. On February 22, 2011, Dr. Pilowsky completed a psychiatric evaluation of the Plaintiff. (R. at 238-39.) Dr. Pilowsky listed as Plaintiff's symptoms, which he found representative of severe anxiety and depression, the following: persistent high levels of anxiety, with occasional tachycardia and "shaking"; daily and constant sadness accompanied by crying; poor sleep; low energy; increased fatigue; variable concentration; and a poor appetite with significant weight loss. (R. at 238.) Dr. Pilowsky found that the Plaintiff's cognition and memory were "grossly intact, " and her affect, "though intense, " was appropriate. (R. at 238.) Throughout the treatment relationship, Dr. Pilowsky reported that the Plaintiff remained "clinically depressed and very anxious." (R. at 261.) Additionally, on May 24, 2011, Dr. Pilowsky reported that the Plaintiff showed signs of Post-Traumatic Stress Disorder ("PTSD"). (R. at 264.) The PTSD symptoms included nightmares about car accidents and feelings that someone else in the family would have an accident similar to her son's. (R. at 264.)

On July 19, 2011, Dr. Pilowsky wrote that the Plaintiff "remains severely depressed" and that "[p]sychologically, it has been a very slow process [for the Plaintiff] to begin to accept that her son is dead. [H]e was at the center of her life, and her greatest hope." (R. at 240.) Dr. Pilowsky reported that because the Plaintiff's previous antidepressant was not helpful, it would be replaced by a new medication. (R. at 240, 268.) No further reports from Dr. Pilowsky are in the record after August 16, 2011.

3. Dr. Sandy Charles

The Plaintiff's primary care physician is Dr. Sandy Charles. On April 6, 2011, Dr. Charles completed a routine exam of the Plaintiff. (R. at 271.) Her chronic diagnoses included depression. (R. at 271.) She reported that the Plaintiff continued "to feel anxious and frequently cries." (R. at 271.) Her sleeping, however, had improved and the Plaintiff reported "good family support." (R. at 271, 272.) The Plaintiff also complained of worsening forgetfulness in the past few months, which Dr. Charles believed was related to the Plaintiff's depression. (R. at 271, 275.) According to Dr. Charles, the Plaintiff described "muscle tension" throughout her body and "diffuse weakness, " but she still had the full range of motion at all joints. (R. at 272, 274.)

Medical records from the summer of 2011 contain follow-up exams by primary care physicians other than Dr. Charles. On May 6, 2011, Dr. Finkelstein found that the Plaintiff had an improved mood and prescribed a pain medicine for her myalgia. (R. at 279.) On May 31, 2011, Dr. Erica Farrand and Dr. Tamika Blackburn reported that the Plaintiff's symptoms from depression were "slightly better than a year ago, but generally not significantly improved." (R. 282.) Dr. Farrand also reported that the Plaintiff's depressed mood was worse in April because it was the Plaintiff's son's birthday, and the one-year anniversary of his death was approaching. (R. at 282.) The Plaintiff also stated to her physician that "she has a lot of family support." (R. at 282.)

On December 13, 2011, Dr. Charles completed a Multiple Impairment Questionnaire. (R. at 291-299.) She reported that the Plaintiff's diagnoses were major depressive disorder and anxiety disorder. (R. at 292.) Dr. Charles found in her prognosis that the Plaintiff "continue[d] to have severe depression despite continued psychotherapy and uptitration of antidepressants, " and that she will "likely require more than one year for her symptoms to improve." (R. at 292.) Dr. Charles wrote that this prognosis was supported by Plaintiff's "flat affect [and] continuous crying, " and by the Plaintiff's "[d]ifficulty sleeping, lack of energy, anxiety, and forgetfulness as a result of difficulty concentrating." (R. at 292.) She wrote that the Plaintiff was incapable of tolerating even low work stress, and that the Plaintiff would need four to five one-hour long unscheduled breaks during a normal work day. (R. at 297.)

On December 13, 2011, Dr. Charles also wrote a letter to describe the Plaintiff's condition. (R. at 253.) Dr. Charles detailed the Plaintiff's treatment and the drug therapies that the Plaintiff had undergone since coming to the clinic in September 2010. (R. at 253.) Dr. Charles reported that the Plaintiff continued to be overwhelmingly sad and that she cried throughout the day. (R. at 253.) She concluded that the Plaintiff "is incapable of working fulltime in a normal, competitive ...

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