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Santiago v. Commissioner of Social Security

United States District Court, E.D. New York

September 25, 2014

DAMON SANTIAGO, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

MEMORANDUM & ORDER

MARGO K. BRODIE, District Judge.

Plaintiff Damon Santiago, proceeding pro se, filed the above-captioned action seeking review pursuant to 42 U.S.C. ยง 405(g) of a final decision of Defendant Commissioner of Social Security denying his application for 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 Commissioner's decision is supported by substantial evidence. Plaintiff opposes Defendant's motion. The Court heard oral argument on September 17, 2014. For the reasons set forth below, Defendant's motion is denied, the Commissioner's decision is vacated and the Court remands the matter for further administrative proceedings.

I. Background

Plaintiff filed an application for disability insurance benefits on July 5, 2012, based on a disability onset date of June 20, 2010. (R. 9.)[1] Plaintiff's application for disability benefits was denied on September 14, 2012. ( Id. ) Thereafter, Plaintiff requested a hearing, and a "video hearing" was held on January 7, 2013. ( Id. ) At the hearing, Plaintiff and Timothy P. Janikowski, a vocational expert, testified. ( Id. ) On January 29, 2013, Administrative Law Judge Eric W. Borda ("ALJ") found that Plaintiff was not disabled. ( Id. at 17.) On March 4, 2013, the Appeals Council denied review of the ALJ's decision. ( Id. at 5-9.)

a. Plaintiff's testimony

Plaintiff has an eleventh grade education and has not received his GED after five failed attempts. ( Id. at 33.) Plaintiff is on public assistance for his housing and food needs. ( Id. at 39.) Plaintiff alleges that he suffers from major depressive disorder, psychotic disorder and anxiety disorder. ( Id. at 32.) In addition, Plaintiff complained of upper back and left elbow pain. ( Id. )

On or about June 20, 2010, Plaintiff began to hear things, including people talking about him and threatening him. ( Id. at 35.) Plaintiff testified that he saw a psychiatrist every week and a doctor every eight weeks. ( Id. at 38.) Although medical treatment has helped "some, " Plaintiff stated that he had problems being around others due to feeling uncomfortable, hearing things, crying and feeling very angry. ( Id. at 38-39.) Because of his medication, Plaintiff is "always sleeping" and "groggy." ( Id. at 40.) Some days Plaintiff does nothing else but sleep. ( Id. at 42.) Plaintiff does not leave his home except to go to the doctor. ( Id. at 39.)

b. Plaintiff's work history

Plaintiff worked as a security guard at a homeless shelter from 1999 to 2003. ( Id. at 33.) Plaintiff also worked as a "laborer" from 2003 to 2010. ( Id. at 187.)

c. Vocational expert's testimony

Timothy P. Janikowski, vocational expert, testified that Plaintiff could not presently perform his past work as a security guard, which is categorized as SVP-3.[2] ( Id. at 44-46.) The ALJ presented the following hypothetical to Janikowski:

[A] person the claimant's age, education, and work experience who could do light work with frequent lift[ing]..., lift with pushing and pulling with his left arm is limited to frequent. He's... right-handed. He would be limited to simple, routine tasks, be off task five percent of the day in addition to regular scheduled breaks due to moderately impaired attention and concentration; can only work in a low-stress job, defined as having no fixed production quotas and no hazardous conditions; with only occasional decision making and only occasional changes in the work setting. He would need to have close supervision. In other words, a supervisor would have to check on him throughout the workday every probably every two hours, four times on each shift. He could have no interaction with the public and only occasional interaction with coworkers....

( Id. at 45-46.) Janikowski stated that this hypothetical worker could perform "light exertional, uncontrolled work that's things oriented." ( Id. at 46.) Janikowski identified a bench assembler, washer (by hand) and "inspector, " all ranked as SVP-2, as examples. ( Id. at 46-47.)

The ALJ then presented Janikowski with another hypothetical. ( Id. at 47.) The hypothetical remained the same except that the worker would be off task up to 15 percent of his workday in addition to regularly scheduled breaks and have markedly impaired attention and concentration. ( Id. ) Janikowski stated that such a worker would not be able to meet the demands of the competitive labor market. ( Id. ) Janikowski also stated that employers would tolerate about one unscheduled absence per month, 12 absences over the course of a year. ( Id. at 38.) Proszek, Social Security Disability and the Legal Profession 163 (2002))), report and recommendation adopted as modified, No. 06-CV-2589, 2009 WL 1726212 (S.D.N.Y. June 18, 2009).

d. Medical evidence

i. Physical impairment

1. Lincoln Medical and Mental Health Center reports

On April 29, 2010, Plaintiff visited the emergency room of Lincoln Medical and Mental Health Center after being punched in the face. ( Id. at 251, 265.) He complained of right eyebrow pain and was categorized as non-urgent. ( Id. ) The treating physician noted decreased vision. ( Id. at 255.) Plaintiff was given pain medication and sent to undergo a CT scan of his head and facial bones. ( Id. ) On April 30, 2010, Plaintiff's test results were "unremarkable" and the ophthalmologist was unable to identify an organic cause to Plaintiff's decreased vision. ( Id. at 262.)

On June 19, 2010, Plaintiff visited the emergency room of Lincoln Medical and Mental Health Center after suffering an "intracranial injury." ( Id. at 240.) He was bleeding from his scalp and complained of left shoulder and back pain. ( Id. ) His scalp wound was repaired and he was discharged with head injury instructions. ( Id. at 242.) Scans were taken of Plaintiff's left shoulder and left elbow and demonstrated no evidence of fracture or dislocation. ( Id. at 229.) Plaintiff's bones were in good alignment and his soft tissue was "unremarkable." ( Id. )

On June 29, 2010, Plaintiff went to Lincoln Medical and Mental Health Center to have staples removed from his head and elbow. ( Id. at 222-37.) His wound was healing well and he was told to return to the emergency room if his condition worsened. ( Id. at 238.)

2. Doctor Nadubeethi Jayaram

On October 7, 2011, Doctor Jayaram performed a consultative examination of Plaintiff's left elbow and noted that he could flex to 120 degrees easily but did have chronic medial epicondylitis of the left elbow. ( Id. at 595.) Doctor Jayaram concluded that his condition was mild and he could perform activity as tolerated. ( Id. )

3. Doctor Aurelio Salon

On August 30, 2012, Doctor Salon performed an internal medicine consultative examination of Plaintiff. ( Id. at 585.) Doctor Salon noted that Plaintiff primarily complained of major depression with psychotic features, back pain, tendonitis of the left elbow, poor vision in the right eye and post-traumatic migraine headaches. ( Id. ) Doctor Salon noted that Plaintiff was then taking 2 mg of Risperidone daily, 20 mg of Citalopram daily and Motrin. ( Id. at 586.) She also noted that Plaintiff could shower, bathe and dress by himself, used no assistive devices, needed no help getting on or off the examination table and could perform a full squat. ( Id. ) Doctor Salon concluded that there were no objective findings to support the fact Plaintiff would be restricted in his ability to sit or stand or in his capacity to climb, push, pull or carry heavy objects. ( Id. at 588.)

ii. Mental impairments

1. Federation Employment Guidance Service

On May 17, 2010, Plaintiff received a "biopyschosocial" assessment at Bronx Lebanon Hospital. ( Id. at 350.) Plaintiff denied a history of mental health services and denied current "suicidal/homicidal ideation [and] auditory/visual hallucinations." ( Id. at 359.) Plaintiff did state that he was depressed due to "false accusations made against him...." ( Id. at 360.) The assessment stated that further evaluation and treatment of Plaintiff's mental health condition would need to be done before a job disposition could be made. ( Id. at 368.) On May 26, 2010, Plaintiff underwent a Federal Employment Guidance Service ("F.E.G.S.") "Phase II" psychiatry examination. ( Id. at 398.) Plaintiff was diagnosed with cannabis and cocaine dependence. ( Id. at 400-01.)

On June 9, 2011, in another "biopyschosocial" assessment, Plaintiff reported mental health treatment as a child and auditory hallucinations within the past week. ( Id. at 380.) The voices told him to kill people. ( Id. ) Kollie Saygbe, a F.E.G.S. social worker, found that Plaintiff's depression was "mild" but recommended him to a physician for further treatment. ( Id. at 384.) Later that day, Doctor Zobidatte Moussa evaluated Plaintiff and referred him to another physician for a Phase II examination. ( Id. at 392.) Doctor Moussa noted that Plaintiff was suffering from frequent auditory hallucinations telling him to arm himself with pistols. ( Id. ) Plaintiff also believed that he was being spied on by others and that people were spreading rumors that he had HIV. ( Id. at 395.) After Plaintiff's Phase II evaluation, Doctor Harvey Barash determined that Plaintiff suffered from schizophrenic disorders and unspecified drug abuse and that he had functional limitations due to his disorders that would last for at least 12 months, thereby making him unable to work. ( Id. at 404.) Doctor Barash found Plaintiff to be a chronic ...


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