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Leisten v. Colvin

United States District Court, W.D. New York

August 28, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration of the United States, Defendant.


FRANK P. GERACI, Jr., District Judge.


Pro se Plaintiff Catherine A. Leisten ("Plaintiff") brings this action pursuant to Title XVI of the Social Security Act ("SSA"), seeking review of the final decision of the Commissioner of Social Security ("Commissioner"), which denied her application for Supplemental Security Income ("SSI"). ECF No. 1. The Court has jurisdiction over this matter under 42 U.S.C. ยงยง 405(g) and 1383(c)(3).

Before the Court, currently, are the Motions for Judgment on the Pleadings filed by both parties pursuant to Federal Rules of Civil Procedure 12(c). ECF Nos. 7, 10. For the reasons set forth herein below, I find that the final decision of the Commissioner is supported by substantial evidence within the record[1] and accords with applicable legal standards. Therefore, this Court grants the Commissioner's Motion for Judgment on the Pleadings, denies Plaintiff's Motion for Judgment on the Pleadings, and orders that the Complaint be dismissed.


A. Procedural History

Plaintiff initially applied for SSI on June 22, 2005, alleging disability due to bipolar disorder, depression, anxiety and post-traumatic stress disorder, with an onset date of December 31, 2004. Tr. 36, 78. Her application for SSI benefits was denied on October 28, 2005. Tr. 53-55. On May 21, 2008, Plaintiff, represented by her attorney Mark E. Maves, Esq., appeared at a video administrative hearing held before Administrative Law Judge ("ALJ") Newton Greenberg (Tr. 362-76), who on June 19, 2008, issued a decision finding that Plaintiff was not disabled. Tr. 15-26. The Appeals Council denied Plaintiff's request for review (Tr. 4-8).

Thereafter, Plaintiff commenced a civil action in the United States District Court for the Western District of New York, Docket No. 08-CV-6566-CJS, and on March 22, 2010, the Honorable Charles J. Siragusa remanded the claim for further administrative proceedings. Tr. 462-84. On remand, Plaintiff, this time represented by Jere B. Fletcher, Esq., appeared and testified at another administrative hearing, which took place on August 18, 2011 and was presided over by ALJ David S. Lewandowski ("ALJ"). Tr. 732-95. Vocational Expert Peter A. Manzi, ("VE") appeared and testified, as well. Tr. 776-82. A friend of Plaintiff, Tammy Turnbull ("Turnbull") also appeared and testified on Plaintiff's behalf. Tr. 784-94. Following the completion of the hearing testimony, the ALJ, in accordance with Judge Siragusa's remand order directing development of the administrative record, held the record open until Sunday, September 18, 2008, [2] for additional evidence from Plaintiff's treating psychiatrist, Gloria J. Baciewicz, M.D. ("Dr. Baciewicz"), and from Gregory V. Seeger, M.D. ("Dr. Seeger") to determine if he treated Plaintiff during the relevant period. Tr. 794-95.

On November 21, 2011, the ALJ issued an unfavorable decision. Tr. 396-409. Noting that, upon a subsequent application filed on June 25, 2008, a different ALJ found Plaintiff disabled as of June 25, 2008 (Tr. 399; see Tr. 445-53), the ALJ considered only the remaining period between December 31, 2004, the date Plaintiff alleged her disability began, and June 24, 2008, the date before the established onset date of her disability, and found that Plaintiff was not disabled under Section 1614(a)(3)(A) of the SSA during this relevant time period. Tr. 409. The ALJ's decision became the final decision of the Commissioner on October 23, 2012, when the Appeals Council declined to assume jurisdiction. Tr. 377-79. Subsequently, Plaintiff timely commenced this action appealing the Commissioner's decision.

B. Factual Background

Plaintiff, who first protectively applied for SSI benefits on June 22, 2005, was thirty-six years old at the time of the administrative hearing, and had completed the 11th grade, but was not in special education and never had vocational training. Tr. 407, 737. Her employment history included brief work as a hotel housekeeper, a supermarket cashier, a food preparer at a restaurant and food server at a movie theater. Tr. 78, 95-98, 369, 373-74, 738-39. Plaintiff has had four jobs in her lifetime for short periods of time in 1992, 1998, 1999 and 2000, with annual earnings never exceeding $1, 990.00. Tr. 78. Plaintiff has not worked since August 2001 and stated that she has been unable to work since December 31, 2004. Tr. 78.

On a form completed by Plaintiff on July 24, 2005, she stated that her days were spent going to groups, mental health, visiting her children, going for walks and shopping. Tr. 85. Plaintiff stated that she took care of her own personal needs by preparing meals, doing household chores including laundry, dishes, dusting and vacuuming. Tr. 86-87. Preparing meals took about a half hour to 45 minutes. Tr. 86. She stated that she went outside every day, and traveled by walking or using public transportation. Tr. 87. Plaintiff was able to drive, but her driver's license was suspended. Id. She stated that her hand shook because of her medication. Tr. 89. She could walk continuously for 30 minutes, but needed to rest 10 minutes to continue walking. Tr. 90, 102. Plaintiff's hobbies included watching movies and playing bingo, which she did weekly. Tr. 88. Plaintiff indicated that she tried to engage in social activities with others daily and to get along with family, friends, neighbors, or others, but that it depended, at times, on her mood, mental state or how she was feeling that day. Tr. 89. She did not have problems getting along with bosses, teachers, police, landlords or others in authority. Tr. 90. While alleging problems with paying attention, Plaintiff stated that she could follow spoken and written instructions and sometimes could do repetitive tasks. Tr. 90, 370. She also claimed that she experienced pain in her lower back from standing for long periods or walking long distances. Tr. 92-93. Plaintiff stated that her mental health caused some days to be better than others and sometimes made it hard to focus on things. Tr. 102.

Plaintiff testified during a previous administrative hearing, held on May 21, 2008, that she could not work because sometimes anxiety overwhelmed her, she felt frustrated and would "sabotage" herself. Tr. 367, 373-74. She stated that she was interested in supporting herself, but her "mental gets in the way of [] feeling successful or wanting to complete something." Tr. 369. Plaintiff admitted that her physical problems did not prevent her from working. Tr. 365, 368. She testified that she lived with her two daughters, ages 12 and 13, and also has four sons who spend weekends with her. Tr. 366, 370, 374-75. She described her average daily activities as getting her daughters up for school, taking her medication, showering and dressing, attending an AA meeting or cleaning her house, or laying on the couch, depending on her mood. Tr. 367, 370. She stated that even on days when she went back to bed, she always got her daughters off to school. Tr. 370.

During the administrative hearing held on August 18, 2011, Plaintiff testified that during the relevant period she was 5'7" and weighed 210 pounds. Tr. 740-41. In 2005, she lived in a supportive living program at the YWCA, and moved in February 2007 to a house with her daughters. Tr. 742-43. Plaintiff testified that she had taken a variety of medications during this time period, including Ambien, Lamictal, Lithium, Buspar, Topamax, Risperdal, Abilify, Laxapro, Neurotonin, Seroquel, Trazadone, Vicodin (after a car accident in 2000) and Zoloft for "bipolar, depression, PTSD, anxiety and personality disorder." Tr. 743-44. Some of the side effects of these medications were sleepiness, eating more with weight gain, and not wanting to be around people. Tr. 745-46. Plaintiff testified that symptoms related to her disorders included feeling angry, being boisterous, unstable, feeling numb, anxiety, stress, drinking and using drugs, not knowing how to deal with her feelings, and isolating herself. Tr. 745-49. She stated that in 1998 and 1999 she was treating with Family Services, but went to Strong Recovery around 2002 and began seeing Dr. Baciewicz in 2003 or 2004 and, later, in 2007 or 2009, began treating with Dr. Seeger, her current psychiatrist.[3] Tr. 750-52. Plaintiff stated that her primary care physician was Dr. Dlugozima, but did not recall when she began seeing her. Tr. 752. She stated that she had also attended mental health classes at the Main Street IPRT program through Genesee Mental Health.[4] Tr. 754. Plaintiff testified that she had been arrested on more than one occasion 10 years ago. Tr. 756-57. Plaintiff stated that she "isolated, " went to meetings, to group therapy, talked to therapists, took her medications, and took drugs and alcohol to make herself feel better during 2005-2008. Tr. 757-59.

Plaintiff acknowledged a long history of alcohol and drug abuse, but testified that she had been clean from alcohol and drug use since April 2007. Tr. 759, 765-66. She, again, stated that her primary impairments were mental disorders, not exertional disorders, but her obesity was an aggravating factor. Tr. 740, 761-62. During the relevant period, Plaintiff was able to take care of her personal hygiene, dress herself, cook meals, shop for groceries and clothes, pay bills, and complete household chores, such as laundry, washing dishes, vacuuming, and dusting. Tr. 762-63, 766-67. Plaintiff testified that she would start something and come back later to finish it. Tr. 768. She visited and ate out with a friend with whom she also watched movies and cooked. Tr. 763-64. She participated in some of her daughters' school activities, and did not go to PTA. Tr. 764. Plaintiff also testified that she lived at two different locations with Tammy Turnbull, a friend of over 15 years, stating that they had good days and bad days. Tr. 760.

Plaintiff's friend of 15 years and with whom she lived on and off over the years, Tammy Turnbull, also testified during the August 18, 2011 administrative hearing regarding her observations of Plaintiff from June 2005 to June 2008. Tr.784-94. Ms. Turnbull, a recipient of SSI benefits, testified that her relationship with Plaintiff involved ups and downs and conversations where Plaintiff got agitated, upset, irritable, and defensive, thinking the conversation was about her when it wasn't, or that everything was about her. Tr. 786-87, 789. She stated that Plaintiff did not like to go out too often, so they watched movies together at her house and Plaintiff's house. Tr. 788. Ms. Turnbull stated that when cooking dinner, Plaintiff took a long time, about an hour, by starting and stopping, and when watching a movie, Plaintiff would leave the room and come back, or move around. Tr. 788, 793. She stated that Plaintiff used sticky notes to remember doctor appointments, but would not always remember, and if having a bad day, she would not go out and stay in bed all day. Tr. 790. Ms. Turnbull acknowledged that Plaintiff sometimes helped her two children with their homework, but got agitated if she didn't understand something, and Plaintiff also took care of their daily needs, fixed their meals and attended school celebrations, PTA days, and parent conferences. Tr. 791. She stated that Plaintiff got her children up and motivated, but sometimes got into verbal and physical fights with them about going to school, and let them stay home. Tr. 792. Ms. Turnbull also testified that Plaintiff spent most of her time during the week in bed. Tr. 793.

Vocational Expert Peter Manzi ("VE") testified during the hearing regarding positions in the national economy that a hypothetical individual of claimant's age, education and work experience, who had an 11th grade education with no GED, no special education or vocational training, a light exertional restriction, the capability of understanding, remembering and carrying out simple instructions, performing simple unskilled tasks with only occasional interaction with the public and frequent interaction with coworkers, could perform. Tr. 776-77. The VE offered that the hypothetical individual could engage in three types of light, unskilled jobs in the national economy. Tr. 777. Upon questioning by Plaintiff's attorney, the VE acknowledged that for a hypothetical individual with functional limitations of being off task from reading, e.g., 60 percent of the time and understanding instructions would preclude work. Tr. 781.

C. Medical Evidence

On October 28, 1998, Plaintiff successfully completed a Chemical Dependency Program at the Family Services of Rochester, for alcohol and cocaine dependency. Tr. 106. Based upon the completion of her treatment goals and consistently passed urinalysis testing, the discharge summary indicated that Plaintiff's prognosis was good, with continued participation in AA/NA and recommended continued mental health counseling and attendance at the 12-Step meetings. Id. She was discharged from the Main Street IPRT program on December 18, 1998. Tr. 119. On July 6, 2004, Plaintiff entered "Strong Recovery, " a mental health treatment program through Strong Memorial Hospital, with an intake diagnosis of cocaine dependence, opioid dependence, panic disorder, depression NOS, and a Hx Bipolar Disorder. Tr. 169-170. The self-discharge summary, dated November 18, 2004, indicated that Plaintiff attended several sessions with her primary therapist, but stopped attending and eventually, was terminated from the program, with a discharge prognosis of "poor if she does not receive treatment." Id.

On November 30, 2004, treating physician Dr. Gloria J. Baciewicz, M.D., completed an "initial assessment" form for the Strong Recovery Chemical Dependency program to which Plaintiff had been referred by Monroe County Department of Social Services ("DSS") Welfare to Work program. Tr. 211-13; repeated at Tr. 214-216. Plaintiff's chief complaints presented at this initial assessment was the DSS referral and that she needed counseling to help her "stay focused each day and to help her talk about her feelings." Tr. 211. She stated that she had attempted treatment at Strong Recovery Chemical Dependency five times since 2002, was attending daily AA meetings, and described a long history of using alcohol and crack cocaine with some limited use of heroin. Tr. 211, 212. Plaintiff stated that she was arrested and jailed in October 2004 for prostitution. Tr. 211. She recounted a maternal family history of alcoholism, bipolar disorder, and depression. Tr. 211. She also reported childhood sexual abuse, and domestic violence. Id. Plaintiff stated that she had six children, a four-month-old in foster care and five others living with various family members. Tr. 212.

Plaintiff stated that she attended MICA programs at St. Mary's and Strong Recovery, but denied a history of psychiatric treatment, suicide attempts or ideation. Dr. Baciewicz noted that at her July 2004 intake, Plaintiff acknowledged overdosing on pills in 1992 due to relationship issues. Tr. 213.

Upon the conduct of a mental status examination, Dr. Baciewicz observed that Plaintiff was cooperative, alert and fully oriented, and her speech was clear and productive. Id. Plaintiff's mood was depressed, her judgment and insight were poor, and she evidenced some memory problems. Id. Plaintiff reported experiencing mood swings, daily panic attacks, "wacky dreams, " and past auditory hallucinations, but denied hallucinations and appeared neither suicidal nor homicidal. Id.

Dr. Baciewicz diagnosed cocaine dependence with physiological dependence, "[b]ipolar disorder per Catherine, " rule out panic disorder, and rule out depressive disorder, and assessed Plaintiff's global assessment of functioning ("GAF") score as 47.[5] Id. She recommended that Plaintiff attend intensive evening treatment at Strong Recovery Chemical Dependency, but also noted that Plaintiff was unenthusiastic about treatment. Id.

At the Commissioner's request, Dr. Melvin Zax, a psychologist, conducted a consultative psychiatric evaluation of Plaintiff on September 28, 2005 (Tr. 180-83). Dr. Zax noted that Plaintiff never had to be hospitalized for a psychiatric problem. Tr. 180. Plaintiff reported that she had bipolar disorder, was anxious, depressed, moody, and felt low and sleepy. She said she sometimes felt overwhelmed, but could "talk herself out of it, " and talking with her AA sponsor and her mother was helpful also. Tr. 181. Plaintiff also described a psychiatric history which included therapy and medications; a medical history which included obesity and vision problems; a long history of drug and alcohol abuse and some treatment; a legal history involving two arrests for prostitution and drug possession; and a limited work history. Tr. 180-181.

Regarding her daily activities, Plaintiff stated that she dressed and bathed herself, cooked, cleaned, did laundry and shopped. Tr. 182. She managed her own money, took buses, watched television, talked, and shopped with friends. Id. Plaintiff was close to her family. She attended group therapy, and kept appointments. Id. She got her children off to school, made them dinner and helped them with their homework. Id.

During the mental status examination, Dr. Zax observed that Plaintiff was cooperative, her manner of relating was adequate, and eye contact was appropriate. Tr. 181. Her gait, posture, and motor behavior were all normal. Id. Plaintiff's speech was fluent, voice quality was clear, both expressive and receptive language skills were adequate, her thinking was coherent, and her affect was appropriate. Tr. 181-82. Her mood was euthymic, her sensorium was clear, and she was oriented to person, place, and time. Tr. 182. Plaintiff's attention and concentration, as evidenced by doing serial threes with no errors in seven operations, and simple calculations in her head at average level, were intact. Id. Dr. Zax also determined that Plaintiff's recent and remote memory were intact based her recalling three out of three objects immediately and, again, after five minutes. Id. She also did only three digits forwards and two backwards. Id. Dr. Zax estimated that Plaintiff was intellectually, borderline, with her fund of information being appropriate to her experience, and her insight and judgment were fair. Id.

Dr. Zax, based upon his findings, indicated that he was "sure" Plaintiff could follow and understand simple directions. Id. His diagnosis was depressive disorder, mild; reflux; obesity; and visual problems. Id. Dr. Zax offered an opinion that ...

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