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Barnwell v. Colvin

United States District Court, S.D. New York

September 19, 2014

DIANE BARNWELL, Plaintiff,
v.
CAROLYN W. COLVIN, acting Commissioner of Social Security, Defendant.

OPINION AND ORDER

HENRY PITMAN, Magistrate Judge.

I. Introduction

Plaintiff, Diane Barnwell, brings this action pursuant to section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for supplemental security income benefits ("SSI"). Plaintiff has moved for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure (Notice of Motion, dated January 7, 2014 (Docket Item 11)). The Commissioner has filed a cross-motion also seeking judgment on the pleadings (Notice of Motion, dated June 20, 2014 (Docket Item 24)). The parties have consented to my exercising plenary jurisdiction in this matter pursuant to 28 U.S.C. § 636(c).

For the reasons set forth below, I deny the defendant's motion for judgment on the pleadings and order that the case be remanded for further proceedings consistent with this opinion.

II. Facts

A. Procedural Background

Plaintiff filed an application for SSI on December 10, 2007 alleging that she had been disabled since November 30, 2007 (Tr.[1] 165). Plaintiff alleges she was disabled due to hypertension, [2] diabetes, gastroesophageal reflux disease, [3] anemia[4] and depression (Tr. 24). The Social Security Administration ("SSA") denied plaintiff's application, finding that she was not disabled (Tr. 87). Plaintiff timely requested and was granted a hearing before an Administrative Law Judge ("ALJ") (see Tr. 65). ALJ Newton Greenberg conducted a hearing on January 5, 2009 (Tr. 65-74). In a decision dated January 23, 2009, ALJ Greenberg determined that plaintiff was not disabled within the meaning of the Act from November 30, 2007 through the date of the decision (Tr. 76-82). On February 4, 2009, plaintiff requested review by the Appeals Council (Tr. 121).

The Appeals Council remanded plaintiff's case for further consideration on July 29, 2010 (Tr. 84-86). On March 15, 2011, ALJ Lucian Vecchio held a second hearing (Tr. 34-64) and rendered a decision on September 9, 2011, again finding plaintiff was not disabled during the relevant time period (Tr. 18-29). The ALJ's decision became the final decision of the Commissioner on April 10, 2013 when the Appeals Council denied plaintiff's request for review (Tr. 1-3).

Plaintiff commenced this action seeking review of the Commissioner's decision on May 31, 2013 (Complaint (Docket Item 1)). On January 7, 2014, plaintiff moved for judgment on the pleadings (Docket Item 11), and on June 20, 2014 defendant crossmoved for judgment on the pleadings (Docket Item 24).

B. Plaintiff's Social Background

Plaintiff was born on November 27, 1963 and was fortyfour years old at the alleged onset of her disability on November 30, 2007 (Tr. 28). Plaintiff holds a high school diploma (Tr. 38). She currently lives alone (Tr. 40), but previously resided with her daughter during at least part of the alleged period of disability (Memorandum of Law in Support of Plaintiff's Motion for Judgment on the Pleadings, dated January 7, 2014, (Docket Item 12) ("Pl.'s Mem.") at 2; see Tr. 248). Plaintiff's last employment was in 2005 when she worked for three or four months as a car transporter for a rental car service (Tr. 38). Prior to that, she was employed for five years as a mail handler by the United States Postal Service (Tr. 38, 43).

C. Plaintiff's Medical Background[5]

Plaintiff suffers from a variety of conditions, including diabetes, hypertension, anemia, gastroesophageal reflux disease and depression (Tr. 24). She began seeing a physician for depression in 2003 (Tr. 588-93), and related medical notes from 2007 indicate that she was suffering from fatigue (Tr. 620), emotional issues (Tr. 688) and stress (Tr. 614). She has regularly been prescribed Zoloft, Benadryl and other medications (see Tr. 701). Plaintiff has also experienced physical injuries, including a sprain of her knee and elbow (Tr. 501, 783).

1. Dr. Ravid, Dr. Finger and Dr. Apacible

On February 11, 2008, plaintiff was interviewed by Dr. Renee Ravid, an SSA consultative psychiatrist (Tr. 248-49). Dr. Ravid found that plaintiff's "recent memory is somewhat impaired" (Tr. 248) and that plaintiff had "impairments in sustained concentration" (Tr. 249). In addition, Dr. Ravid found that plaintiff was impaired "in her ability to respond appropriately to supervision, co-workers and work pressures" (Tr. 249).

On that same date, plaintiff was examined by Dr. Howard Finger, an SSA consultative examiner (Tr. 250-52). Dr. Finger found that plaintiff was "mildly limited" in the amount of time she was able to stand, the distance she was able to walk and in her ability to "lift, carry, push/pull, climb stairs" (Tr. 252).

Dr. Apacible, an SSA non-examining specialist, reviewed plaintiff's file on February 27, 2008 (Tr. 253-69). Dr. Apacible concluded that plaintiff had mild "restriction of activities of daily living, " mild "difficulties in maintaining social functioning, " and moderate "difficulties in maintaining concentration, persistence or pace" (Tr. 263). Dr. Apacible found, based upon review of plaintiff's files, that she was "capable of simple, entry level work" (Tr. 269).

2. Dr. Taneja

On December 22, 2008, Dr. Navneet Taneja, one of plaintiff's treating physicians, completed a Psychiatric-Psychological Impairment Questionnaire, noting that plaintiff had major depression and that her treatment included bi-monthly group therapy sessions (Tr. 276) along with Zoloft and Benadryl (Tr. 281). Dr. Taneja also indicated that plaintiff could perform "low stress" work (Tr. 282), but that she would likely be absent from work three or more times a month as a result of her conditions (Tr. 283).

3. Dr. Reddy

On December 28, 2009 Dr. Navin Reddy, another treating physician, completed a Psychiatric-Psychological Impairment Questionnaire indicating that plaintiff had a major depressive disorder (Tr. 510), but also noting that she was capable of performing work under "moderate stress" (Tr. 516). Dr. Reddy's treatment notes of February 2, 2010 indicate that plaintiff continued to have a major depressive disorder and that she had trouble sleeping and was irritable (Tr. 769).

4. Dr. Publico

Dr. Lourdes Publico was plaintiff's treating physiatrist[6] in 2009 (Tr. 501). The records of Dr. Publico's treatment are not included in the administrative record aside from a completed Multiple Impairment Questionnaire dated November 24, 2009 (Tr. 501-08).[7] In the questionnaire, Dr. Publico diagnosed plaintiff with a knee sprain, depression, hypertension, diabetes and chronic pain (Tr. 501). Except for plaintiff's chronic pain, these conditions appear to have been diagnosed "by history" (Tr. 501). Dr. Publico also indicated on the questionnaire that plaintiff could only sit for two hours in a typical eight hour work day and could only stand for one hour (Tr. 503). Dr. Publico also noted that plaintiff would likely be absent from work for three or more days every month as a result of her various conditions (Tr. 506).

5. Dr. Salon and Dr. Fujiwaki

On January 10, 2011, plaintiff was examined by Dr. Aurelio Salon, an SSA consultative examiner (Tr. 780-89). He noted plaintiff's history of diabetes, depression, hypertension, obesity and her then current right elbow sprain (Tr. 783). On the basis of his examination, he found that plaintiff was not restricted in her ability to sit, stand, climb, push, pull or carry (Tr. 783).

Dr. Haruyo Fujiwaki, an SSA consultative psychologist, interviewed plaintiff on January 10, 2011 (Tr. 773-76). He completed a Medical Source Statement of Ability to Do Work-Related Activities on January 24, 2011 (Tr. 777-79). He indicated that while plaintiff had no issues with simple instructions, she was moderately to markedly limited in understanding, remembering, carrying out and making judgments on complex instructions in a work-related environment (Tr. 777). He also indicated that plaintiff had moderate limitations in responding appropriately in work situations (Tr. 778).

6. Dr. Rosen and Dr. Wiegand

Questionnaires completed by Dr. Anna Rosen and Dr. Jessica Wiegand were also submitted to the Appeals Council after the ALJ's decision (see Tr. 4).

On October 27, 2011, Dr. Rosen completed a Psychiatric-Psychological Impairment Questionnaire; the questionnaire appears to state that Dr. Rosen began treating plaintiff on September 23, 2010[8] for a major depressive disorder (Tr. 796-803). Dr. Rosen wrote that plaintiff's depression was "severe without psychosis" (Tr. 796). She nevertheless found plaintiff's prognosis to be "good" (Tr. 796), with moderate limitations in memory and concentration (Tr. 799) and the ability to tolerate low work stress (Tr. 802).

On August 30, 2012, Dr. Wiegand completed a Psychiatric-Psychological Impairment Questionnaire which also appears to state that she started treating plaintiff for major depression on September 23, 2010[9] (Tr. 807-14). Dr. Wiegand found that plaintiff suffered from marked limitations in her ability to remember locations and work-like procedures, to maintain attention and concentration for extended periods, to perform activities within a schedule, to complete a normal workweek without interruptions from psychologically-based symptoms and to perform at a consistent pace without unreasonably numerous and unreasonably lengthy rest periods (Tr. 810-11). She also found that plaintiff suffered from several other moderate limitations related to memory, concentration and social functioning (Tr. 810-11). Dr. Rosen found that plaintiff would require three or more days of absences per month in order to treat her symptoms and would be expected to experience episodes of decompensation (Tr. 801, 803).

D. Proceedings Before the ALJ

1. Plaintiff's Testimony

Plaintiff testified that the symptoms of her depression were pain (Tr. 39) and inability to sleep (Tr. 40). She also reported fatigue (Tr. 41) and that her medication did not relieve her symptoms (Tr. 40). She testified that her daily activities are fairly limited - she ...


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