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Alberalla v. Colvin

United States District Court, W.D. New York

August 22, 2014

BELINDA KAY ALBERALLA, Plaintiff,
v.
CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant.

REPORT AND RECOMMENDATION

HUGH B. SCOTT, Magistrate Judge.

I. INTRODUCTION

The Hon. Richard J. Arcara referred this case to this Court under 28 U.S.C. ยง 636(b) (Dkt. No. 9). Pending before the Court are cross-motions for judgment on the pleadings by plaintiff Belinda Kay Alberalla ("Alberalla") (Dkt. No. 17) and the Commissioner of Social Security ("Commissioner") (Dkt. No. 18). Alberalla argues that medical records and opinions received by the Appeals Council undermine the decision of the Administrative Law Judge ("ALJ"), and therefore the Appeals Council erred by affirming the ALJ's decision. Alberalla argues further that because the ALJ failed to properly develop the record, his residual functional capacity determination was unfounded and the Commissioner erred by adopting it. Additionally, Alberalla asserts that the ALJ prevented her from testifying about her Post-Traumatic Stress Disorder ("PTSD") during the hearing, and the ALJ subsequently failed to address the impairment in his decision. Alberalla contends that the Commissioner committed legal error requiring remand by then adopting this decision. Finally, Alberalla asserts that the ALJ failed to accurately portray Alberalla's limitations when posing hypothetical questions about job availability to the Vocational Expert, and that the Commissioner erred by adopting a decision that relied on the Vocational Expert's response to these hypotheticals. The Commissioner responds that the ALJ's residual functional capacity finding is supported by substantial evidence in the record, that the ALJ sufficiently developed the medical record, that the ALJ properly relied on the Vocational Expert's testimony, and that no evidence submitted to the Appeals Council required remand.

The Court held oral argument on July 10, 2013. (Dkt. No. 19). For the reasons below, the Court respectfully recommends granting Alberalla's motion (Dkt. No. 17) in part, vacating the Commissioner's determination, and remanding the case for the purpose of completing the medical record and for reassessment of mental and physical disability. The Court recommends denying Alberalla's motion without prejudice to the extent that it seeks any other relief. The Court further recommends denying the Commissioner's motion (Dkt. No. 18).

II. BACKGROUND

A. Procedural History

Alberalla filed a Title II application for a period of disability and disability insurance benefits ("DIB") on September 30, 2010, which was denied on January 19, 2011. (Certified Administrative Record at 91, hereinafter designated as [91].) On her September 30, 2010, application for DIB, Alberalla indicated that she intended to file for Supplemental Security Income ("SSI") as well. [97.] The record indicates that Alberalla applied for SSI on January 29, 2011. [170-177.] Alberalla alleged that she has been disabled since January 24, 2010, due to a "plugged" aorta, depression, anxiety, PTSD, liver disease, and a circulatory problem. [214.] The record does not indicate when Alberalla's application for SSI was initially denied. On January 26, 2011, Alberalla requested a hearing before an ALJ. [110-111.] Alberalla's hearing request was acknowledged on January 31, 2011, [112-118.] On May 16, 2012, Alberalla and her attorney, Kelly Laga, appeared before ALJ Bruce Mazzarella for a hearing. [35.] The ALJ found Alberalla not disabled on June 18, 2012. [7-25.] Alberalla requested the Appeals Council review the ALJ's decision on August 16, 2012. [33-34.] On July 2, 2013, the Appeals Council denied Alberalla's request for review of the ALJ's decision, at which point the ALJ's decision became the final decision of the Commissioner. [1-6.] Alberalla commenced this case by filing a Complaint on August 30, 2013. (Dkt. No. 1.)

B. Factual and Medical Background

Alberalla was born on November 30, 1967, and was 44 years old at the time of the ALJ's decision. [40-41.] She attended school through seventh grade and never obtained a General Educational Development ("GED") certification. [45.] Prior to the alleged onset date of her disability, Alberalla had worked two cleaning jobs and as a bus aide. [43.]

On April 13, 2010, Alberalla submitted to a consultative examination at the request of the SSA. [314.] She was examined by Donna Miller, D.O., to whom she reported that she suffered from peripheral vascular disease ("PVD"), hepatitis C, anxiety, and depression. [ Id. ] During the examination, Alberalla was unable to walk on her heels or toes due to pain. [315.] Dr. Miller diagnosed Alberalla with PVD, hepatitis C, hypothyroidism, and tobacco abuse, and opined that Alberalla would have mild limitations with prolonged walking. [317.]

Alberalla submitted to a psychiatric evaluation with Rachel Hill, Ph.D., on April 13, 2010, as well. [308.] This evaluation revealed that Alberalla "generally related adequately"; appeared older than her stated age; was poorly groomed; her gait was "not quite right with a right leg limp"; her motor behavior was "a little odd" including rocking and wringing her hands; her affect was depressed, anxious, and tense; she could not do multiplication problems; and she could not remember two objects after five minutes. [311.] Dr. Hill opined that Alberalla could follow and understand simple directions and instructions, perform simple tasks independently, and maintain attention and concentration; she further offered that "[p]sychologically, I think she can maintain a regular schedule." [311-312.] Additionally, Dr. Hill noted that Alberalla could learn new tasks, "although I do not think she can be real fast at it, " and she could perform complex tasks independently. [312.] Dr. Hill then commented that Alberalla "relates adequately with others. I think she has some problems dealing with stress. Her greatest difficulties are being caused by physical problems, and those would have to be assessed by a physician, but she also has some psychiatric problems." [ Id. ] As a result of her examination, Dr. Hill diagnosed Alberalla with major depressive disorder, which she characterized as "mild to moderate"; opioid dependence and abuse, which she noted was in remission; cannabis dependence and abuse, which she also noted was in remission; a plugged aorta; low thyroid; and hepatitis C. [ Id. ] Regarding Alberalla's prognosis, Dr. Hill opined that "[p]sychiatrically, I think it is probably fair." [ Id. ]

On January 10, 2011, Alberalla submitted to another internal medicine consultative examination at the behest of the SSA. [587.] She was examined by Nikita Dave, M.D., to whom she stated that she had "atherosclerosis or perhaps occluding thrombus in the aorta, descending portion, since two years." [ Id. ] Alberalla reported that she suffered from significant pain in both lower extremities anteriorly when walking more than about 200 feet. [ Id. ] Alberalla went on to note that she was born with her bowel attached to her ovaries, though the condition was not diagnosed until the early 1990s and she had no symptoms. [ Id. ] Additionally, Alberalla reported that she was diagnosed with hepatitis C, PTSD, panic, anxiety, and depression. [ Id. ] Dr. Dave notes that Alberalla was five foot one inch tall and weighed 196 pounds, classifying her as moderately obese. [588.] Upon examining Alberalla, Dr. Dave found that she had pitting edema, , to the knees, affecting both legs. [589.] As a result of his examination, Dr. Dave diagnosed Alberalla with "aortic atherosclerosis or [sic] thrombus, two years, " noting "[p]lease see vascular surgery notes in this regard"; panic; anxiety; PTSD; depression; substance abuse, which he noted had been in remission since 2003; marijuana use, which he noted had been in remission since 2008; chronic mild tobacco use; status post bilateral carpal tunnel surgery and ganglion cystectomy with resolution; status post tubal pregnancies; and hepatitis C, pending evaluation and treatment. [590.] Dr. Dave indicated that Alberalla's prognosis was "[f]air, " and opined that she had a moderate limitation for walking more than 200 feet due to claudication. [ Id. ] He further noted that Alberalla "may require frequent rest breaks and comfort intervals for standing and walking, " and that she "may benefit from more sedentary types of activities and help with smoking cessation." [ Id. ]

On January 10, 2011, Alberalla also submitted to another psychiatric consultative evaluation at the SSA's request, performed by Susan Santarpia, Ph.D.. [581.] Alberalla reported to Dr. Santarpia that she was previously diagnosed with panic attacks, anxiety, PTSD, and depression, and that she was currently seeing Dr. Mostert for psychotropic medication management and a woman named Nancy for counseling, both of whom were provided by the Erie County Medical Center ("ECMC"). [ Id. ] Alberalla also indicated that her PTSD diagnosis was secondary to being raped when she was 13 years old and to assault at the hands of her father when she was a child. [ Id. ] Alberalla further reported to Dr. Santarpia that she suffered from onset as well as maintenance insomnia, waking approximately eight times per night; increased appetite, along with a 50 pound weight gain; depressive symptoms, including fluctuating dysphoric mood, hopelessness, and loss of usual interest; increased stress due to living with her terminally ill mother; anxiety-related symptoms, including excessive apprehension and worry, restlessness, flashbacks, and nightmares; and situationally specific panic attacks, seemingly triggered by riding the bus or crowded spaces and consisting of roughly thirty minutes of heart palpitations and sweating. [582.] Alberalla also reported that she was experiencing the previously mentioned panic attacks daily. [ Id. ] Dr. Santarpia opined that Alberalla's cognitive functioning was in the low average to borderline range of ability, and that both her insight and judgment were fair. [583.] Alberalla indicated that she was able to dress, bathe, and groom herself and that her husband helped with the cooking, cleaning, laundry, and shopping. [ Id. ] She indicated that she distanced herself from her friends because they were all involved with her when she was using drugs. [ Id. ] Dr. Santarpia opined that Alberalla could follow and understand simple directions and instructions, perform simple tasks independently, maintain attention and concentration, maintain a regular schedule, and learn new tasks within normal limits. [584.] She further opined that Alberalla had mild impairments in performing complex tasks independently, making appropriate decisions, relating adequately with others, and appropriately dealing with stress. [ Id. ] Dr. Santarpia specifically noted that Alberalla's "[d]ifficulties are caused by fatigue." [ Id. ] Dr. Santarpia diagnosed Alberalla with a mood disorder which was not otherwise specified ("NOS"), panic disorder without agoraphobia, polysubstance dependence in sustained remission, hepatitis C, and thyroid dysregulation. [ Id. ] She recommended that Alberalla continue with her current psychological and psychiatric treatment, and noted that her prognosis was "[f]air given current compliance with treatment." [ Id. ]

Alberalla's treating physician, James Yossef, M.D., completed a physical residual functional capacity questionnaire on August 13, 2012.[1] [684-688.] Dr. Yossef indicated that he had been treating Alberalla for one year and that she was diagnosed with PVD. [684.] He reported that walking caused pain in Alberalla's legs, for which she took pain medication. [ Id. ] When prompted to indicate how often during a typical workday Alberalla's pain or other symptoms were severe enough to interfere with the attention and concentration necessary for simple work tasks, Dr. Yossef marked "frequently, " which is defined here as 34% to 66% of an 8-hour workday. [685.] Dr. Yossef also noted that Alberalla was "[i]ncapable of even low stress' jobs, " and that she could walk at most one city block without resting or experiencing severe pain. [ Id. ] Dr. Yossef reported that, in a competitive work situation, Alberalla could lift and carry less than 10 pounds occasionally, 10 to 20 pounds rarely, and could not lift 50 pounds. [686.] Notably, Dr. Yossef also indicated that Alberalla would require unscheduled breaks during an 8-hour workday, though he offered no opinion on the frequency or duration of these unscheduled breaks. [ Id. ] Additionally, Dr. Yossef noted that Alberalla could look down, look up, turn her head left or right, and hold her head in a static position frequently; twist, stoop, crouch, or squat occasionally; climb stairs rarely; and never climb ladders. [687.] Dr. Yossef also signed an undated letter that was submitted to the Appeals Council which said that Alberalla's PVD greatly hindered her ability to walk long distances or be on her feet for extended periods of time, and that he did not believe she could work in an occupation which requires her to do so. [695.] Dr. Yossef further opined that Alberalla was not a good candidate for vascular surgery. [ Id. ]

On March 25, 2009, Alberalla was treated at ECMC for worsening bilateral leg pain and paresthesia. [273.] She was diagnosed with chronic bilateral leg arterial insufficiency with claudication. [ Id. ] It was also noted that Alberalla had chest pain which was not clearly cardiac in nature. [274.]

On April 20, 2009, Alberalla was treated at ECMC for bilateral leg pain and for pain in her left wrist. [357.] Neither her femoral nor her DP/PT pulse was palpable. [ Id. ] It was also indicated that Alberalla's leg pain may be caused by bilateral leg claudication. [ Id. ]

On June 02, 2009, Alberalla underwent an "angio left eval right" procedure through ECMC. [366.] James Lukan, M.D., the attending physician, listed obesity when considering Alberalla's past medical history, and noted that the significant findings of the procedure included negative femoral and DP/PT pulses. [367.]

Alberalla was admitted to ECMC on August 17, 2009, due to diffuse sharp chest pain which had persisted for approximately one week; she was discharged the following day. [286.] During her physical examination, Alberalla was anxious and crying, and her EKG on admission initially showed sinus bradycardia in the 50's. [287.] Upon discharge, Alberalla was prescribed Synthroid and buspirone. [ Id. ] Her discharge diagnoses included chest pain, secondary to anxiety; hypothyroidism; dyslipidemia; opioid abuse; PVD; and generalized anxiety disorder. [289.]

James Lukin, M.D., performed an angiogram on Alberalla on August 30, 2009. [284, 285.] Alberalla's diagnosis, before and after the procedure, was bilateral lower extremity ischemia. [284.] Dr. Lukin's findings included "diffuse atherosclerotic disease of the distal aorta with complete occlusion at the bifurcation and rich collaterals that reconstitute in the bilateral lower extremities"; "reconstitution of the right common iliac artery right at the bifurcation with flow through the internal and external iliacs"; "right common femoral artery patent"; "right profunda femoris patent"; "right superficial femoral artery is patent"; "right popliteal is patent"; "right lower extremity runoff is via peroneal and anterior tibial arteries, the peroneal artery appearing dominant"; "reconstitution of the left internal iliac artery"; "left common iliac artery is not seen"; "reconstitution of distal left external iliac artery"; "diseased left common femoral artery"; "patent profunda femoris and superficial femoral arteries"; "popliteal artery is patent"; "there is three-vessel runoff." [ Id. ] Dr. Lukan reported "due to the rich collaterals that are perfusing the lower extremities as well as the takeoff of a left renal that is quite low and near to the area of occlusion, it is felt that recanalization and stenting would be extremely risky and that instead consideration should be given to an open procedure if anything is done at all." [285.]

Alberalla began mental health counselling with Amanda Es Drumsta, MSW, on December 10, 2009. [534.] Ms. Es Drumsta noted that Alberalla was tearful when talking about her stressors, trauma history, and anxiety. [ Id. ] During her initial appointment, Alberalla reported struggling with constant anxiety and at least one panic attack per day, as well as difficulty sleeping and flashbacks to childhood traumas. [ Id. ] On December 17, 2009, when Alberalla next saw Ms. Es Drumsta, she reported that her panic attacks had been getting worse and that she had to leave work early the day before because of their intensity. [535.] During her December 21, 2009, meeting with Ms. Es Drumsta, Alberalla reported that she was having difficulty coping with her mother's terminal illness, and that she was having several panic attacks per day thinking about her mother dying. [536.] When she met with Ms. Es Drumsta on December 28, 2009, Alberalla reported that she could not fall asleep at night and that when she did, she would wake up with nightmares. [537.] Alberalla further reported that her anxiety had gotten so bad that it affected every aspect of her life. [ Id. ]

On January 12, 2010, Alberalla underwent a non-invasive arterial exam of the lower extremities, which suggested aorto-iliac arterial occlusive disease with a mild flow reduction to the legs at rest bilaterally, with no change from the previous study on May 08, 2009. [474.]

On January 19, 2010, Alberalla informed Ms. Es Drumsta in a counseling session that she had been unable to afford to refill her prescription for Celexa. [540.] On February 2, 2010, Alberalla appeared tired and her affect was flat, and she indicated to Ms. Es Drumsta that she had been struggling. [544.] On February 8, 2010, Ms. Es Drumsta worked with Alberalla on her anxiety and helped her with different ways to alleviate her panic attacks. [545.]

On February 19, 2010, Alberalla informed Ms. Es Drumsta during a session that she was concerned about paying a large bill to the methadone clinic. [546.] She was anxious about what might happen if she were taken off methadone. [ Id. ] Alberalla met with Ms. Es Drumsta several more times in the weeks that followed, reporting largely the same issues. [547-551.] When Alberalla met with Ms. Es Drumsta on March 29, 2010, she reported that she was continuing to have panic attacks, and that she did not feel Celexa was helping with them. [552.]

On April 12, 2010, Alberalla reported to Ms. Es Drumsta that she was struggling with constant anxiety, worrying about everything, and not being able to "shut her brain off." [554.] on April 19, 2010, Alberalla reported to Ms. Es Drumsta that her panic attacks were happening constantly, and she wondered if she "just has a fear of the world in general." [555.] She further indicated that she had always been afraid of her father, that she had many regrets, that she feared losing her husband, and that she feared the future. [ Id. ]

On May 17, 2010, Alberalla underwent a CT examination of the chest with contrast due to severe pain in her left chest. [491.] The exam, conducted at ECMC with Timothy V Jorden, M.D., attending, showed two to three tiny calcifications in the right upper lobe, but showed that Alberalla's lung fields were otherwise unremarkable. [ Id. ] The examination further showed minimal hilar lymphadenopathy, likely benign and longstanding, and fatty infiltration of the liver. [ Id. ]

On May 06, 2010, Alberalla was treated by Dr. Marcelle Mostert. [342.] Alberalla reported suffering from nightmares every night which sometimes made her afraid of falling asleep. [ Id. ] Dr. Mostert diagnosed Alberalla with panic disorder without agoraphobia, opioid dependence, and frequent nightmares related to PTSD. [ Id. ]

Alberalla underwent a counseling session with Susan L. Schneider, MSW, on June 2, 2010. [346.] During this session, Alberalla indicated that she had tried to hang herself seven years earlier, but did not have any current suicidal or homicidal ideation. [ Id. ] Alberalla stated that her mind "is always thinking, " and that she thinks about past abuse at the hands of her father as well as a rape at the age of 13. [ Id. ]

Alberalla was treated again by Dr. Mostert on June 3, 2010, at which point she reported being upset after visiting with her therapist the day before. [341.] Alberalla indicated she had obsessive compulsive disorder ("OCD") symptoms, including compulsive hand washing. [ Id. ] Dr. Mostert indicated that Alberalla was prone to worry and had limited insight, and he increased her prazosin dosage for her nightmares. [ Id. ]

Alberalla began counseling with Nan Abbott, MSW, on June 21, 2010. [347.] During this session, Alberalla complained of compulsive hand washing, and left the session at one point to wash her hands. [ Id. ] Alberalla continued counseling with Ms. Abbott on July 12, 2010, at which point she reported experiencing up to three panic attacks per day. [348.] During the session, Alberalla had a panic attack, during which Ms. Abbott observed her holding her breath. [ Id. ] Ms. Abbott attempted to trace Alberalla's panic attacks back to her first experience, which Alberalla reported occurred while witnessing her father abuse her mother. [ Id. ] Ms. Abbott noted that "currently [Alberalla] spends her day wallowing in her worry, " and that Alberalla "struggles to make progress." [ Id. ]

On August 02, 2010, Alberalla reported to Dr. Mostert during a session that she continued to have three panic attacks per week, and that some nights she was so frightened that her husband had to escort her to the bathroom. [340.] Alberalla expressed concern about taking the GED because of her anxiety, and Dr. Mostert noted that her insight was limited. [ Id. ]

Alberalla continued counseling with Ms. Abbott on August 09, 2010, and she expressed concern that treatment with Dr. Mostert was not helping with her anxiety and panic attacks. [349.] Ms. Abbott indicated that Alberalla's history was significant for abandonment by her biological mother at one year old, and both physical and emotional abuse by her father until she was 24 years old. [ Id. ] When Alberalla met with Ms. Abbott again on August 23, 2010, she indicated she was still having panic attacks and she could not refill her prescription of Seroquel because of the price. [350.]

On September 09, 2010, Alberalla was "frantic" during a treatment session with Dr. Mostert because she had been unable to refill her Seroquel prescription and feared relapse. [339.] Alberalla's Medicaid had not begun before she ran out of Seroquel, and she felt too overwhelmed to try to overcome her anxiety with breathing or cognitive techniques. [ Id. ] Dr. Mostert gave her a prescription for thioridazine as a temporary substitute. [ Id. ]

During a session with Ms. Abbott on September 13, 2010, Alberalla reported that she felt pain when visualizing climbing stairs due to pain her blocked aorta caused her when climbing stairs in real life. [570.] During a session on September 20, 2010, Ms. Abbott suggested Alberalla undergo Eye Movement Desensitization and Reprocessing ("EMDR")[2] trauma treatment, but Alberalla was resistant because she feared re-experiencing the trauma. [571.]

On October 07, 2010, Alberalla was treated by Dr. Mostert, and she had just started taking Seroquel again after she had been unable to afford it. [338.] During this session, Alberalla requested that she be taken off prazosin because she felt it was not helping with her nightmares. [ Id. ] Alberalla reported that she was "very uneasy" about talking to her therapist about past traumas, and that she was having frequent panic attacks that included chest pain. [ Id. ]

During a session with Ms. Abbott on November 01, 2010, Alberalla vented and organized her feelings about her mother's continued decline. [337.] On November 15, 2010, Alberalla told Ms. Abbott that she was dreading an agreement to spend Christmas with her father, as she feared a confrontation. [576.]

On November 02, 2010, Alberalla returned to ECMC for treatment of her right leg claudication due to a concern that it was worsening. [495.] Her pulse was not palpable, and it was indicated that Alberalla had a distal aortic occlusion. [ Id. ] On December 21, 2010, Alberalla continued treatment for her vascular problems with Dr. Raphael Blochle, at which point her pain was at a moderate level. [580.]

On December 15, 2010, Alberalla underwent a non-invasive arterial examination of the lower extremities with duplex imaging through ECMC, which revealed aorto-iliac arterial occlusive disease with mild flow reduction to the leg and digits bilaterally at rest, and moderate flow reduction to the leg bilaterally post-exercise. [578.] This study showed no significant change from the May 8, 2009, study. [ Id. ] Alberalla returned for a follow-up with physician's assistant Eamon McCallion on March 15, 2011, ...


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