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Buscemi v. Colvin

United States District Court, W.D. New York

September 24, 2014

CHARLES BUSCEMI, Plaintiff,
v.
CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant.

DECISION & ORDER

MARIAN W. PAYSON, Magistrate Judge.

PRELIMINARY STATEMENT

Plaintiff Charles Buscemi ("Buscemi) 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 (the "Commissioner") denying his applications for Supplemental Security Income and Disability Insurance Benefits ("SSI/DIB"). Pursuant to 28 U.S.C. § 636(c), the parties have consented to the disposition of this case by a United States magistrate judge. (Docket # 10).

Currently before the Court are the parties' motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket ## 8, 9). For the reasons set forth below, this Court finds that the decision of the Commissioner is supported by substantial evidence in the record and complies with applicable legal standards. Accordingly, the Commissioner's motion for judgment on the pleadings is granted, and Buscemi's motion for judgment on the pleadings is denied.

BACKGROUND

I. Procedural Background

Buscemi applied for DIB on January 3, 2012 and for SSI on January 23, 2012, alleging disability beginning on March 1, 2011, due to depression, anxiety and difficulty being around other people. (Tr. 156-58, 165, 204).[1] On January 26, 2012, Buscemi amended his application for SSI alleging his disability began on April 1, 2011. (Tr. 174). On April 12, 2012, the Social Security Administration denied both of Buscemi's claims for benefits, finding that he was not disabled. (Tr. 64-66). Buscemi requested and was granted a hearing before Administrative Law Judge Brian Kane (the "ALJ"). (Tr. 81-82, 96-99). The ALJ conducted a hearing in Rochester, New York on August 2, 2012. (Tr. 25-63). Buscemi was represented at the hearing by his attorney, Justin Goldstein, Esq. (Tr. 3, 25). In a decision dated August 17, 2012, the ALJ found that Buscemi was not disabled and was not entitled to benefits. (Tr. 12-20).

On December 26, 2012, the Appeals Council denied Buscemi's request for review of the ALJ's decision. (Tr. 1-4). Buscemi commenced this action on February 19, 2013, seeking review of the Commissioner's decision. (Docket # 1).

II. Non-Medical Evidence

A. Buscemi's Applications for Benefits

Buscemi was born on October 12, 1962 and is now fifty-one years old. (Tr. 158). Buscemi obtained his GED in 1983. (Tr. 205). Buscemi's previous work history includes employment as a plastics mold injector, production worker and warehouse worker for various temporary agencies. ( Id. ). At the time of his application, Buscemi was taking Denlasaxine, Gabapentin and Seroquel for his depression and anxiety. (Tr. 206).

B. The Disability Analyst's Assessment

On April 12, 2012, disability analyst P. Izakson ("Izakson") completed a non-severe impairment checklist. (Tr. 212). Izakson opined that Buscemi did not suffer from abnormalities in any of his physical functions, including walking, lifting, reaching, seeing, standing, pushing, carrying, hearing, sitting, pulling, handling or speaking. ( Id. ). According to Izakson, the evidence did not establish more than a slight abnormality of physical functioning. ( Id. ).

III. Relevant Medical Evidence[2]

On June 20, 2011, Buscemi began receiving mental health treatment at Unity Health System. (Tr. 312). During his first visit, Buscemi met with Sarah Lechner ("Lechner"), LMSW, for a comprehensive medical evaluation. ( Id. ). Lechner diagnosed Buscemi with major depressive disorder, recurrent, severe, without psychotic features. ( Id. ). Buscemi reported that he has experienced depression since he was seventeen years old and that his current symptoms include disruptive sleep, sadness, difficulty concentrating, poor view of self, feelings of emptiness and worthlessness, decreased interest and pleasure, low energy and restlessness. (Tr. 313). In addition, Buscemi reported feelings of anxiety and concerns that people were watching him. ( Id. ). Buscemi reported experiencing these symptoms for the past five to ten years. ( Id. ). Buscemi reported that he does not have any hobbies and frequently watches television. (Tr. 314).

Buscemi reported that he had previously received mental health treatment and had been diagnosed with bipolar disorder. ( Id. ). According to Buscemi, he was prescribed medication, but did not follow through with treatment. ( Id. ). Buscemi reported a history of illegal substance use and alcohol dependency, for which he attended an inpatient rehabilitation program in 1991. (Tr. 315-16). According to Buscemi, he last consumed alcohol in March 2011, [3] when he was arrested for driving while intoxicated. (Tr. 317, 319, 321).

Buscemi reported that he was raised by his mother and father, who are still married, and he has two sisters and two brothers. (Tr. 318). According to Buscemi, his father was physically abusive, and he has a strained relationship with his family. (Tr. 318, 320). Buscemi was expelled from high school in tenth grade because he threw a fire extinguisher down a stairwell. (Tr. 319). Buscemi subsequently obtained his GED. ( Id. ). Buscemi was married in 1998 and divorced approximately three years later. ( Id. ).

Buscemi last worked in mid-March 2011, approximately the same time that he was arrested for DWI. ( Id. ). According to Buscemi, that position was his third job during the previous four months. ( Id. ). Buscemi reported that he had difficulty remembering simple work-related tasks and difficulty maintaining concentration. ( Id. ).

Lechner assessed that Buscemi's speech was normal and his thought forms were logical and coherent. (Tr. 320). According to Lechner, Buscemi's thought processes included helplessness, hopelessness and worthlessness. ( Id. ). Buscemi's mood and affect were depressed, but he exhibited good insight and judgment. (Tr. 321). Buscemi scored twenty on the Quick Inventory of Depressive Symptomatology ("QIDS"), indicating a severe level of depressive symptoms. (Tr. 323).

Lechner referred Buscemi to the partial hospitalization program at University of Rochester Medical Center ("URMC"). (Tr. 427). According to the treatment notes, Lechner referred Buscemi because of his "worsening symptoms of depression and anxiety resulting in inability to function at work or family roles." ( Id. ). During intake, Buscemi reported both physical and sexual abuse during his childhood. (Tr. 428). According to Buscemi, he has had unsuccessful long-term relationships with women. ( Id. ). Buscemi reported difficulty maintaining employment due to his inability to perform adequately at his job as a result of his anxiety. ( Id. ).

Buscemi reported a history of substance use, including alcohol, marijuana, cocaine and opiates. ( Id. ). According to Buscemi, he had not used any controlled substances in at least three years and had not consumed alcohol since his March 2011 DWI arrest. ( Id. ). Prior to that time, according to Buscemi, he had been sober for approximately two years. ( Id. ). The intake interviewer, Frances McCarthy ("McCarthy"), RN, characterized Buscemi as "evasive, " particularly with respect to his sobriety. (Tr. 428-29, 31). McCarthy noted that Buscemi expressed concern over his placement into a program addressing substance abuse, rather than depression. (Tr. 431).

McCarthy opined that Buscemi's mood and affect were anxious and depressed and that he expressed negative ruminations, but showed no evidence of hallucinations. (Tr. 429). According to McCarthy, Buscemi's memory was intact, and he exhibited average cognitive intelligence with poor concentration. ( Id. ). McCarthy diagnosed Buscemi with major depressive disorder, severe without psychotic features, with a Global Assessment Functioning ("GAF") of 38, and opined that Buscemi should be admitted to the partial hospitalization program due to the severity of his symptoms. (Tr. 432).

Buscemi's treatment plan at URMC included psychotherapy sessions with Peter Teall ("Teall"), LCSW-R, medication evaluation and monitoring by Michelle Stouffer ("Stouffer"), NP, and group therapy. (Tr. 425). During treatment, Buscemi reported oversleeping and periods of high anxiety. (Tr. 420). Teall opined that Buscemi was "evasive" and noted that the treatment team felt that Buscemi was "malingering." ( Id. ). Buscemi indicated that he was interested in medical treatment for his anxiety. ( Id. ). Stouffer told Buscemi that he was not a candidate for certain prescription controlled substances given his history of alcohol abuse and instead prescribed Prozac, Hydroxyzine, Neurontin and Gabapentin. (Tr. 271, 410, 420). Buscemi was discharged on July 19, 2011. (Tr. 271). Buscemi's attendance during the program was good, but his participation during group sessions was limited. ( Id. ). At discharge, Buscemi's depression had not improved, although his anxiety had lessened. ( Id. ). Buscemi was diagnosed with major depressive disorder, moderate to severe, no psychosis, with a GAF of 45 at discharge. ( Id. ).

A treatment plan completed by Lechner on July 26, 2011 indicated that Fluoxetine, Gabapentin and Hydroxyzine had been prescribed to him during the partial hospitalization program at URMC. (Tr. 308). According to Lechner, Buscemi reported continued feelings of depression. ( Id. ). On September 8, 2011, Lechner completed another mental health treatment plan. (Tr. 304-07). Lechner noted that Buscemi had attended two of the three scheduled therapy sessions and had met with Nusrat Shafiq ("Shafiq"), MD, to evaluate his medications. ( Id. ). Shafiq prescribed Prozac, Buapor and Neurontin. ( Id. ).

On September 14, 2011, Shafiq completed a mental health evaluation of Buscemi. (Tr. 293). During the evaluation, Buscemi reported that he was currently living with his former brother-in-law. (Tr. 294). According to Buscemi, he had been sober for the past three months. ( Id. ). Buscemi reported ongoing depression accompanied by disrupted sleep, sadness, difficulty concentrating, poor view of self, feelings of emptiness and worthlessness, decreased interest and pleasure, low energy and feelings of restlessness. ( Id. ). Buscemi reported ongoing anxiety, but thought that his medications were alleviating some of the anxiety. (Tr. 302). Shafiq diagnosed Buscemi with major depressive disorder, rule out dysthamia, anxiety disorder not otherwise specified, and alcohol dependence. ( Id. ).

On November 5, 2011, Lechner completed a Psychological Assessment for Determination of Employability form. (Tr. 445-48). Lechner noted that Buscemi had previously been hospitalized for substance abuse treatment, had occasionally lost employment, had occasionally acted inappropriately with others and that his behavior frequently interfered with his activities of daily living. (Tr. 446). Lechner diagnosed Buscemi with major depressive disorder, anxiety disorder not otherwise specified, alcohol dependence and a GAF of 53. (Tr. 447). According to Lechner, Buscemi was moderately impaired in his ability to maintain attention and concentration and in his ability to demonstrate the capacity to perform low stress and simple tasks. ( Id. ).

A treatment plan completed by Lechner dated December 7, 2011 indicates that Buscemi's medications had been modified. (Tr. 288). Buscemi was prescribed Effexor, Seroquel and Neurontin. ( Id. ). According to Lechner, Buscemi continued to participate in therapy sessions and was consistently attending his appointments and taking his medications. (Tr. 291). During a therapy session on December 8, 2011, Lechner and Buscemi explored Buscemi's negative thought patterns and depressed mood. (Tr. 349). Lechner recommended Cognitive Behavioral Group Therapy ("CBT"). ( Id. ). During the session, Lechner assessed Buscemi's speech as normal and his thought form as logical and coherent. (Tr. 350). Buscemi exhibited helpless and hopeless thought content, and his mood and affect were depressed, although his insight and judgment were good. ( Id. ).

On December 22, 2011, Buscemi attended another therapy session with Lechner. (Tr. 345-46). Buscemi reported that he was sentenced to jail during the weekends for the next six weeks as a consequence of his DWI conviction. ( Id. ). Buscemi told Lechner that he did not believe his prescription for Effexor was effective and he continued to have negative thoughts and hopelessness. ( Id. ). Again, Lechner assessed Buscemi's speech as normal and his thought form as logical and coherent with helpless and hopeless thought content. ( Id. ). According to Lechner, Buscemi's mood and affect were depressed, although his insight and judgment were good. ( Id. ).

On December 28, 2011, Buscemi called Unity Health System and reported that Effexor was increasing his irritability. (Tr. 344). Buscemi wanted to discontinue it immediately. ( Id. ). Buscemi reported that Neurontin and Seroquel were alleviating his anxiety. ( Id. ). Shafiq counseled Buscemi regarding discontinuing Effexor and prescribed Cymbalta. ( Id. ). Buscemi attended a follow-up appointment with Shafiq on January 3, 2012, and reported the absence of withdrawal symptoms. (Tr. 338). Buscemi cancelled his therapy appointment with Lechner on January 5, 2012. (Tr. 337).

On January 19, 2012, Buscemi attended a therapy session with Lechner. (Tr. 333). During the session, Buscemi reported an improved mood since starting Cymbalta and that he was spending more time with his family. ( Id. ). Buscemi continued to experience feelings of hopelessness. ( Id. ). Buscemi attended another therapy session on February 9, 2012, during which he expressed feelings of anger and hurt relating to his father. (Tr. 330). Buscemi exhibited thoughts of guilt and worthlessness with a depressed mood and affect. (Tr. 331).

Buscemi met with Shafiq on February 20, 2012. (Tr. 324-29). Buscemi reported that Neurontin and Seroquel were alleviating his anxiety, but that he continued to experience decreased energy and motivation. (Tr. 324). According to Buscemi, Cymbalta helped to improve his mood, but was not completely effective. (Tr. 325). Buscemi reported that his former brother-in-law and his family have been supportive. ( Id. ). Shafiq increased Buscemi's Cymbalta dosage. ( Id. ).

On March 2, 2012, state examiner Dr. Kavitha Finnity ("Finnity") conducted a consultative psychiatric evaluation of Buscemi. (Tr. 375-78). During the evaluation, Buscemi reported that he was divorced and that he lived with his former brother-in-law. ( Id. ). Buscemi reported that ...


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