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Beckers v. Colvin

United States District Court, W.D. New York

August 14, 2014

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

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[Copyrighted Material Omitted]

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For Daniel A. Beckers, Plaintiff: Charles E. Binder, LEAD ATTORNEY, Binder and Binder, P.C., New York, NY.

For Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant: Kathryn L. Smith, LEAD ATTORNEY, U.S. Attorney's Office, Rochester, NY.

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ELIZABETH A. WOLFORD, United States District Judge.


Plaintiff Daniel Beckers (" Plaintiff') brings this action pursuant to 42 U.S.C. § 405(g), seeking review of the final decision of Carolyn W. Colvin, Acting Commissioner of Social Security (" the Commissioner" ), denying Plaintiff's application for Social Security Disability (" SSD" ) and Supplemental Security Income (" SSI" ) benefits. (Dkt. 1). Plaintiff alleges that the decision of Administrative Law Judge (" ALJ" ) Gerardo Perez was not supported by substantial evidence in the record and was based on erroneous legal standards.

Presently before the Court are the parties' Opposing motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Dkt. 4, 11). For the reasons set forth below, the Commissioner's motion is denied, Plaintiff's motion is granted in part, and this matter is remanded for further administrative proceedings.


A. Overview

On May 25, 2010, Plaintiff protectively filed applications for SSD and SSI, (Tr. 124-35, 152). In his application, Plaintiff alleged disability since April 15, 2009, due to bipolar disorder, anxiety disorder, and hypothyroidism. (Tr. 124-35, 156). Plaintiff's applications for SSD and SSI were initially denied on September 16, 2010. (Tr. 75-82). Plaintiff timely filed a request for a hearing before an Administrative Law Judge (" ALJ" ). (Tr. 83-84). On August 23, 2011, Plaintiff, represented by counsel, testified at a hearing before ALJ Gerardo Perez. (Tr. 51-70). Vocational Expert (" VE" ) Hector Puig also appeared and testified. (Tr. 64-69).

On September 2, 2011, ALJ Perez issued a decision finding Plaintiff not disabled. (Tr. 21-33). On March 8, 2013, the Appeals Council denied review, rendering the ALJ's decision the final decision of the

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Commissioner. (Tr. 1-7). Plaintiff commenced this civil action appealing the final decision of the Commissioner on April 30, 2013. (Dkt. 1).

B. The Non-Medical Evidence

1. Plaintiff's Testimony

Plaintiff was 26 years old on the alleged disability onset date. (Tr. 32). He attended school through the tenth grade, and later received his GED. (Tr. 55). His previous work included food vender, department manager, and waiter. (Tr. 55; Tr. 157).

Plaintiff testified that he was unable to work due to his inability to focus, his excessive tiredness, and his anxiety. (Tr. 55-56). Plaintiff indicated that his medications also made him dizzy, and that his physicians were trying to find the right medication combination to alleviate the dizziness. (Tr. 56).

Plaintiff stated that on a typical day he would spend the day in his room alone. (Tr. 57). Plaintiff had one friend who would visit him at his house, where he lived with his parents. ( Id.). Plaintiff testified that he did not go outdoors unless there was nobody around, and if he had to be around people, he had to take Xanax to alleviate his anxiety. (Tr. 57-59). Plaintiff stated he did not drive, and if he went anywhere he was typically accompanied by his mother. (Tr. 58). Plaintiff claimed that he napped every day for two to three hours, and experienced trouble with his memory. ( Id.). Plaintiff did testify that he mowed the lawn, but he otherwise had no household chores. (Tr. 57). Plaintiff testified that he was not allowed to cook at his house because in the past he forgot what he was doing and left the stove on. (Tr. 59).

2. The Vocational Expert's Testimony

VE Puig testified that a hypothetical individual of Plaintiff's age, education, and work history, who had no physical limitations but Who was limited to performing simple, routine, repetitive tasks, and could have no contact with the general public, could not perform Plaintiff's past relevant work. (Tr. 65-66). However, VE Puig testified that such an individual would be able to work as a sorter, ticketer, or hand packager. (Tr. 66). According to the VE, there were a significant number of these jobs in the national economy for Plaintiff to perform, many of which were located in the Rochester, N.Y. area. (Tr. 67).

In a second hypothetical, the VE was asked to consider the same limitations as the first hypothetical, with the additional limitation that the individual would need a low stress job. ( Id.). VE Puig responded that the individual would still be able to perform the representative jobs of sorter, ticketer, or hand packager. ( Id.).

In a third hypothetical, the VE was asked to consider all of the above limitations as well as the possibility that the individual would be off task for ten percent of the day in addition to regular breaks. (Tr. 68). The VE opined that there would be no jobs for such an individual to perform. ( Id.).

Plaintiff's attorney asked the VE to consider an individual with the same limitations who would be absent from work two or three times per month due to impairment or medical appointments. ( Id.). The VE stated " that rate or number of frequency of absences surpasses what we call regular absence tolerances related in industry . . . he would not be able to satisfy any employer in any kind of work, he would be out of the labor market." ( Id.).

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C. Summary of the Medical Evidence

The Court assumes the parties' familiarity with the medical record, which is summarized below.

On July 21, 2009, therapist Amanda J. Hackett, L.M.S.W., and psychiatrist Jennifer Palamara, M.D., of Kelly Behavioral Health Center (" KBHC" ) completed a psychosocial-psychiatric assessment of Plaintiff. (Tr. 206-09). Plaintiff complained of panic attacks and racing thoughts. (Tr. 206). Plaintiff reported feeling " as if he is crawling out of his own skin." ( Id.). Plaintiff was diagnosed with anxiety disorder not otherwise specified, rule-out bipolar disorder, and rule-out personality disorder. (Tr. 208).

Marianne Miles, NPP, Ph.D., Plaintiff's nurse practitioner at KBHC, evaluated Plaintiff on July 27, 2009. (Tr. 210). Plaintiff complained of racing thoughts, insomnia, severe anxiety, and a feeling like his " insides are racing." ( Id.). Dr. Miles noted, inter alia, a restricted affect, anxious mood, angry episodes, tangential thinking, insomnia, and slightly distorted perceptions. (Tr. 212). She diagnosed anxiety disorder, bipolar disorder, and rule-out personality disorder. (Tr. 213).

On August 19, 2010, Kevin Duffy, Psy.D., a licensed psychologist, consultatively examined Plaintiff. (Tr. 245-49). Dr. Duffy opined that Plaintiff could follow and understand simple directions and instructions, and perform tasks independently. (Tr. 247-48). Dr. Duffy further opined that Plaintiff may have difficulty maintaining attention and concentration, relating adequately with others, and dealing appropriately with stress. (Tr. 248). However, Dr. Duffy also found that Plaintiff was capable of maintaining a regular schedule, performing complex tasks independently, and making appropriate decisions. ( Id.). Dr. Duffy diagnosed Plaintiff with bipolar disorder not otherwise specified, and rule-out impulse control disorder not otherwise specified. ( Id.).

State agency psychological consultant E. Kamin completed a Psychiatric Review Technique on September 15, 2010. (Tr. 260). Dr. Kamin indicated that Plaintiff had mild restrictions of daily activities, moderate difficulties in maintaining social functioning, moderate difficulties in maintaining concentration, persistence, or pace, and no episodes of decompensation. ( Id.). Dr. Kamin further opined that Plaintiff could " perform unskilled work in a low contact setting." (Tr. 266).

Dr. Miles issued letters to Ontario County Social Services dated May 19, 2010, and October 18, 2010, in which she stated that Plaintiff was receiving treatment for bipolar disorder and anxiety disorder, and that he Would be unable to work. (Tr. 268-69).

Dr. Miles continued to treat Plaintiff at KBHC from May 28, 2010, through March 30, 2011, with the assistance of Maria Gigliotti, a therapist. (Tr. 297-313). On July 29, 2010, Plaintiff reported nightmares and disturbed sleep. (Tr. 300). On October 27, 2010, Dr. Miles noted that Plaintiff reported recent paranoia and depression. (Tr. 307).

On April 21, 2011, Maria Gigliotti completed a psychiatric/psychological questionnaire that was co-signed by Charles Lilly, M.D. (Tr. 314-21). In this questionnaire, the providers diagnosed Plaintiff with general anxiety disorder and rule-out personality disorder. (Tr. 314). Ms. Gigliotti and Dr. Lilly noted poor memory, sleep disturbance, mood disturbance, recurrent panic attacks, feelings of guilt/worthlessness, difficulty thinking or concentrating, social withdrawal, decreased energy, and generalized persistent anxiety. (Tr. 315). They also opined that Plaintiff would miss

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work two to three times per month. (Tr. 321).

Plaintiff treated with Dr. Miles in June 2011 and July 2011, and was prescribed various psychotropic medications. (Tr. 336-39). Treatment notes from June 29, 2011, indicated that Xanax helped Plaintiff with his social anxiety. (Tr. 336).

On May 25, 2011, Dr. Miles completed a Psychiatric/Psychological Impairment Questionnaire and diagnosed Plaintiff with bipolar disorder and social phobia. (Tr. 326-33). Dr. Miles noted, inter alia, poor memory, appetite disturbance, insomnia, mood disturbance, emotional liability, recurrent panic attacks, paranoia, social withdrawal, decreased energy, and generalized persistent anxiety. (Tr. 327-28). Dr. Miles opined that Plaintiff was markedly limited in his ability to concentrate for extended periods of time, perform activities within a schedule, maintain regular attendance, work in coordination to others without becoming distracted, complete a normal work week without psychological disruptions, perform at a consistent pace, interact appropriately with the public, accept instructions and respond appropriately, and travel to unfamiliar places or use public transportation. (Tr. 329-31). Dr. Miles noted that Plaintiff was not a malingerer, and opined that Plaintiff is incapable of handling low stress work. (Tr. 332). Dr. Miles estimated that Plaintiff would be absent from work more than three times per month due to his impairments or treatment. (Tr. 333). This questionnaire was reviewed and co-signed by Dr. Lilly. ( Id.).

D. Determining Disability Under the Social Security Act and the ALJ's Decision

The Social Security Act provides that a claimant will be deemed to be disabled " if he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A); see Rembert v. Colvin, No. 13-CV-638A, 2014 WL 950141, at *6 (W.D.N.Y. Mar. 11, 2014). A disabling impairment is defined as " an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostics techniques." 42 U.S.C. § § 423(d)(3), 1382c(a)(3)(D). The burden is on the claimant to demonstrate that he is disabled within the meaning of the Act. See Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002). The individual will only be declared disabled if his impairment is of such severity that he is unable to do his previous work and cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful activity. 42 U.S.C. § § 423(d)(2)(A), 1382c(a)(3)(B).

In making the disability determination, the ALJ follows a five-step sequential analysis. If the ALJ makes a determination at any step, the evaluation will not continue to the next step. 20 C.F.R. ยง ...

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