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Elliott v. Colvin

United States District Court, E.D. New York

September 24, 2014

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


MARGO K. BRODIE, District Judge.

Plaintiff Sabrina Elliott filed the above-captioned action seeking review pursuant to 42 U.S.C. ยง 405(g) of a final administrative decision of Defendant Carolyn W. Colvin, Acting Commissioner of Social Security ("Commissioner") denying her claim for Social Security disability insurance benefits. Defendant moves for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, claiming that the decision of Administrative Law Judge Ronald R. Bosch ("ALJ") is supported by substantial evidence and should be affirmed. (Docket Entry No. 11.) Plaintiff cross-moves for judgment on the pleadings, arguing that, (1) the ALJ erred in failing to obtain additional records from Leonard Kingsley, Ph.D., Plaintiff's treating psychologist, (2) the ALJ did not properly evaluate Plaintiff's credibility, (3) the ALJ's finding that Plaintiff can perform the full range of light work is not based on substantial evidence, and (4) the ALJ failed to adequately establish that there is other work in the national economy that Plaintiff can perform. (Docket Entry No. 14.) For the reasons set forth below, Defendant's motion for judgment on the pleadings is denied. Plaintiff's cross motion for judgment on the pleadings is granted.

I. Background

Plaintiff is a 47-year old woman who graduated from high school, and completed thirteen credits of college education. (R. 52.) Plaintiff has a "tax training certificate, " ( id. at 53), and last worked in 2010 as a telemarketer, ( id. at 200). Plaintiff filed for disability benefits on August 30, 2010, [1] alleging disability beginning January 15, 2010. ( Id. at 18.) In her Disability Report, Plaintiff reported that she stopped working in July 2010 due to knee surgery, back injury, foot injury, bi-polar disorder, high blood pressure, dizziness, and gastritis. ( Id. at 237.) On December 21, 2010, Plaintiff's application for disability benefits was denied. ( Id. at 97-102.) Plaintiff requested a hearing by an Administrative Law Judge on February 9, 2011. ( Id. at 107-08.) The request was granted and an administrative hearing was held before the ALJ on March 28, 2012. ( Id. at 18.) By decision dated April 12, 2012, the ALJ found that Plaintiff was not disabled. ( Id. at 18-27.) The Appeals Council denied review of the ALJ's decision on March 1, 2013. ( Id. at 1-6.)

a. Plaintiff's testimony

Plaintiff testified that she experiences lower back pain, right arm numbness and pain, depression and anxiety. ( Id. at 40, 45-46, 49.) Plaintiff rated her back pain, on a scale from one to ten, as ten "on average." ( Id. at 40.) She described her lower back pain as a "shooting, sharp pain" and stated that the duration of the pain varies. ( Id. at 41.) Plaintiff can sit for one or two hours before having to change positions. ( Id. ) Plaintiff estimated that she can sit for four hours with breaks, can stand for four hours with breaks and can stand for thirty minutes continuously before experiencing discomfort. ( Id. at 42.) Plaintiff can walk for about one block before having to stop, and has trouble going up and down stairs. ( Id. at 43.) Plaintiff has trouble walking on uneven surfaces, but over the course of an eight-hour day, can walk for up to one hour, with breaks. ( Id. at 45, 53.) Plaintiff can climb stairs and can maintain her balance more often than not. ( Id. at 55.) Plaintiff has trouble bending at the waist, squatting, stooping, crouching, and crawling. ( Id. at 43-44.) Plaintiff was issued a cane that she "needed, " but she did not know where it was located and was unable to replace it. ( Id. at 44.)

Plaintiff has problems pushing and pulling with her right hand and experiences weakness in her hand. ( Id. at 45.) Plaintiff can write with a pen or pencil. ( Id. ) When asked if she could use a computer, Plaintiff stated that she did not think that she could sit at a desk and do computer work continuously. ( Id. at 46.) While Plaintiff initially testified that she could carry ten pounds with her right arm and five pounds with her left arm, she later indicated that her lifting limit was five pounds. ( Id. at 46, 54.)

Plaintiff experiences depression and anxiety every day. ( Id. at 59.) Due to her depression, she has "low tolerance" and low patience for noise, standing in line and crowds. ( Id. at 46.) Plaintiff has "outbursts" and gets "aggressively loud" in public environments. ( Id. at 47.) She stays at home to avoid public environments. ( Id. at 48.) Plaintiff does not believe that she can work given that she has "no quality of life, " she does not "have peace of mind at home, " and is in pain. ( Id. at 50.) Her depression and anxiety are exacerbated by the fact that she lives with her mother who has many health problems, including a history of mental health impairments. ( Id. at 48.)

Plaintiff needs help getting in and out of the tub, ( id. at 57), but can dress herself, prepare a meal, and take public transportation independently, and perform a "little" exercise, ( id. at 57-58). Plaintiff cannot work around dust or in extreme cold or heat, cannot operate a motor vehicle, cannot be exposed to vibrations, noise, temperature or humidity changes, heights, moving mechanical parts or machinery. ( Id. at 56-57.) Plaintiff is no longer treating with a doctor.[2] She takes a low-milligram Motrin for her pain which she explained "help[s]" with the pain but "not so much." ( Id. at 50.)

Plaintiff attends church and maintains hobbies. ( Id. at 59.) Plaintiff does not socialize with others and spends her typical day at home. ( Id. at 59.) Although Plaintiff used to have a lot of friends, she no longer has patience for people. ( Id. at 60.) When passing by a group of people who are talking or laughing, she believes that the group is talking or laughing about her. ( Id. at 59.)

b. Plaintiff's work history

Plaintiff last worked in 2010 as a telemarketer. ( Id. at 200.) She worked in this capacity for one or two months.[3] ( Id. at 200, 236.) Prior to her work as a telemarketer, Plaintiff worked as a paratransit bus operator from July 2009 until January 2010, and as a bus operator and property protection agent from 1997 until 2008. ( Id. at 220.) As a paratransit bus operator, she operated a paratransit vehicle and assisted customers with bags and luggage. ( Id. at 221.) As a bus operator and property protection agent, she operated a bus and provided security in various locations including train yards, bus depots and warehouses. ( Id. at 222.)

c. Medical Evidence

i. Treatment prior to disability onset date

The record contains documents relating to Plaintiff's medical treatment prior to the alleged onset date of her disability in January 15, 2010. These include Plaintiff's treatment records following a 2003 work injury where Plaintiff tripped over an uneven surface and hit her left knee, as well as Plaintiff's mental health treatment records.

1. V. Gressel, M.D. CPMR[4] (East Shore Medical, P.C.)

Plaintiff saw Dr. Gressel of East Shore Medical, P.C. on or about December 23, 2003, for a follow-up examination of a left knee injury following a 2003 work incident.[5] ( Id. at 265.) Plaintiff reported that the pain in her left knee was improving but that she was experiencing "periodic episodes of clicking and lock in" which persisted despite treatment. ( Id. ) Plaintiff also reported lower back pain and stiffness and difficulties with walking and prolonged standing. ( Id. )

Dr. Gressel reported that there was "no swelling" in Plaintiff's left knee, and that her left knee had 125 degrees of flexion and improved motor power extension. ( Id. ) Dr. Gressel stated that Plaintiff could ambulate without assistive device. ( Id. ) Dr. Gressel's physical examination of Plaintiff indicated that Plaintiff's lumbosacral range of motion was limited to 60 degrees of flexion. ( Id. ) Dr. Gressel also noted that there was a pending authorization for an MRI of Plaintiff's left knee. (Id.) Dr. Gressel diagnosed Plaintiff with a left knee derangement due to work related injury, meniscal tear/ligament rupture and lumbosacral spine derangement. ( Id. ) Dr. Gressel recommended that Plaintiff continue physical therapy three times a week, follow up in four weeks, and continue treatment with "NSAIDs."[6] ( Id. ) Dr. Gressel recommended that Plaintiff return to work under "light duty, " with restrictions. ( Id. at 266.)

2. Andranik Khatchatrian, M.D., Ph.D

Plaintiff saw Dr. Khatchatrian on March 11, 2005, for a second opinion for her work related injury. ( Id. at 261-63.) Plaintiff complained to Dr. Khatchatrian of continued pain in her left knee with restricted range of motion and weakness of the left lower extremity. ( Id. at 262.) Plaintiff further reported that she was unable to run, jump, or walk more than one block without pain, and had difficulty going up and down stairs. ( Id. )

Dr. Khatchatrian noted Plaintiff's prior medical history related to her left knee pain, including prior X-rays, which were negative for fracture or dislocation and a prior MRI, which indicated a meniscal tear. ( Id. ) Dr. Khatchatrian also noted that surgery was recommended to Plaintiff but that she declined to have surgery. ( Id. ) Plaintiff underwent physical therapy for one year, and at the time of Dr. Khatchatrian's examination had missed thirteen months of work. ( Id. )

Dr. Khatchatrian performed a physical examination of Plaintiff's left knee and noted tenderness to palpation over the joint line with more tenderness on the medial side. ( Id. ) Dr. Khatchatrian further noted weakness of Plaintiff's left knee extension "with mild atrophy of the quadriceps muscles, mostly the vastus medialis" and "moderate restriction of active flexion of the left knee and mild restriction of active extension." ( Id. ) Dr. Khatchatrian recommended that Plaintiff continue her home exercise program and "proper care, " and noted that Plaintiff was not interested in any further intervention. ( Id. at 263.) Dr. Khatchatrian concluded that Plaintiff had a schedule loss of use of her left leg of 20% due to the September 13, 2003 work incident. ( Id. )

3. Preferred Health Partners

Plaintiff visited various doctors at Preferred Health Partners (PHP) several times throughout 2005-2007, and 2009-2010 for treatment related to certain physical and mental ailments. The treatment records from PHP variably identify Dr. Anthony Ezeagbor or Dr. Mavis Polidore as Plaintiff's primary care providers. ( See e.g., id. at 278, 279, 382, 384.)

Many of Plaintiff's treatments at PHP appear to be unrelated to her current disabilities.[7] However, once in 2007 and several times throughout 2009, Plaintiff visited Dr. David Tavdy and Dr. Ezeagbor, on separate occasions, for her depression and anxiety.

a. Dr. David Tavdy

On December 5, 2007, Plaintiff visited Dr. Tavdy for her depression. ( Id. at 384.) She complained of symptoms of stress, depression and anxiety. ( Id. ) Dr. Tavdy described Plaintiff's depressive disorder as "chronic" and recommended that Plaintiff resume taking Zoloft 50mg and counseling and that she should follow up with her primary care physician, Dr. Ezeagbor.[8] ( Id. at 384.)

b. Dr. Ezeagbor

Plaintiff visited Dr. Ezeagbor several times in 2009, mostly concerning her mental health ailments. ( Id. at 269-270, 275, 277-278.) On January 16, 2009, Plaintiff visited Dr. Ezeagbor for a "routine check up" and to have an unspecified form filled out.[9] ( Id. at 269.) Plaintiff reported during this visit that she felt "much better but... [was] still stressed out." ( Id. ) Dr. Ezeagbor noted that Plaintiff was "not yet adjusted"[10] and ordered that Plaintiff seek a follow up with a psychiatrist. ( Id. ) During this visit, Dr. Ezeagbor conducted a physical examination of Plaintiff and found that Plaintiff was in no apparent distress, was well nourished, and that her respiratory, musculoskeletal, and neurological conditions were normal. ( Id. ) Dr. Ezeagbor also classified Plaintiff's adjustment disorder with anxiety and depressive disorder as being under "fair control."[11] ( Id. )

On February 17, 2009, Plaintiff visited Dr. Ezeagbor again for a follow up examination and to have an unspecified form filled out. ( Id. at 270.) During this visit, Plaintiff reported feeling "depressed every now and then, " and Dr. Ezeagbor classified Plaintiff's adjustment disorder with anxiety as under "fair control." ( Id. ) It appears that Dr. Ezeagbor ordered Plaintiff to continue taking Zoloft 50mg and Ambien 5mg as prescribed. ( See id. (identifying both medications as "added or continued [at] this visit").) Dr. Ezeagbor's physical examination of Plaintiff on this date yielded normal results. ( Id. )

On May 4, 2009, Plaintiff visited Dr. Ezeagbor again, complaining of an unrelated issue. ( Id. at 275.) Plaintiff requested during this visit "to have her med[ication] while in a psych shelter." ( Id. ) No other information is provided in the record regarding the nature of Plaintiff's stay in a "psych shelter" or whether Plaintiff was receiving treatment at this facility. There is also no indication as to any particular medication or whether Plaintiff was still taking Zoloft 50mg and Ambien 5mg as previously prescribed. The results of Dr. Ezeagbor's physical examination of Plaintiff on this date were normal. ( Id. )

On May 8, 2009, Plaintiff visited Dr. Ezeagbor regarding a "disability form" filled out. ( Id. at 277.) Plaintiff reported not feeling depressed or anxious and being "stable." ( Id. ) Plaintiff also indicated that she was still in the shelter. ( Id. ) Dr. Ezeagbor classified Plaintiff's adjustment disorder as "stable" and the results of his physical examination of Plaintiff were normal. ( Id. )

On June 10, 2009, Plaintiff visited Dr. Ezeagbor regarding a "disability form." ( Id. at 278.) During this visit, Plaintiff denied any new complaint and Dr. Ezeagbor reported Plaintiff's adjustment disorder as "stable." ( Id. ) Plaintiff next visited Dr. Ezeagbor on October 22, 2009 for a check-up and to have another unspecified disability form "[r]enewed." ( Id. at 281.) Plaintiff did not report any new complaints and Dr. Ezeagbor noted that Plaintiff's adjustment disorder had "improved, " and that Plaintiff had "no emotional disturbances."[12] ( Id. ) On December 3, 2009, Plaintiff saw Dr. Ezeagbor for a follow-up visit. ( Id. at 284-85.) At this visit, Plaintiff did not report any new complaint to Dr. Ezeagbor and was still taking Motrin 600mg and Zoloft 50mg. ( Id. at 284.) Plaintiff's adjustment disorder was stable. ( Id. ) Dr. Ezeagbor described Plaintiff as having a history of "borderlin[e] personality" disorder.[13] ( Id. ) Dr. Ezeagbor did not provide any other details about Plaintiff's borderline personality disorder.

4. James P. Wolberg, M.D.

On August 14, 2008, Plaintiff visited Dr. Wolberg for an independent psychiatric evaluation, as part of her employer's review of her ability to perform her position as a security property protection agent. ( Id. at 349.) Dr. Wolberg prepared a summary of his evaluation on this date, ( id ), which was included as part of a report prepared by New York City Transit Authority regarding a 2008 investigation by Plaintiff's employer into allegations of inappropriate behavior by Plaintiff, ( see infra Part I.c.iii.1). Dr. Wolberg noted that Plaintiff presented with no current psychiatric symptoms, had no complaints, and did not exhibit any serious emotional or behavioral distress. ( Id. ) He observed that Plaintiff was "somewhat guarded, distrustful and defensive, but cooperative with encouragement in providing information." ( Id. ) Dr. Wolberg also noted that Plaintiff reported a psychiatric history of irritability, stress and anxiety related to conflicts at work with authority figures, and reported "episodes of angry verbal outbursts, " as well as "ongoing grudges" with her supervisors who she perceived as "demeaning" towards her and who she believed engaged in other targeted behavior against her. ( Id. ) Plaintiff also reported that she was previously diagnosed with Adjustment Disorder and had been treated with Zoloft, which she reported taking regularly "with fair effect." ( Id. )

Dr. Wolberg concluded that Plaintiff exhibited "mild to moderate non-psychotic character traits in the paranoid domain which appear to cause interpersonal and occupation conflicts at times." ( Id. ) Dr. Wolberg also noted that Plaintiff described an "ongoing pattern of distrust and suspicion, especially towards authority figures, and is quick to react loudly and angrily, which has led to previous concerns and psychiatric evaluations." ( Id. ) Because of Plaintiff's admitted past history of alcohol and ...

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