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Gee v. Colvin

United States District Court, W.D. New York

September 30, 2014

GARY B. GEE, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

DECISION AND ORDER

ELIZABETH A. WOLFORD, District Judge.

I. INTRODUCTION

Represented by counsel, Plaintiff Gary B. Gee ("Plaintiff') brings this action pursuant to 42 U.S.C. ยง 405(g), seeking review of the final decision of Carolyn W. Colvin, Acting Commissioner of Social Security ("the Commissioner"), denying Plaintiffs application for Supplemental Security Income ("SSI'') and Social Security Disability ("SSD") benefits. (Dkt. 1). Presently before the Court are the parties' opposing motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Dkt. 11, 12). For the reasons set forth below, the Commissioner's motion is denied, Plaintiffs motion is granted in part, and this matter is remanded for further administrative proceedings.

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Overview

April 21, 2009, Plaintiff filed an application for SSI and SSD benefits. (Administrative Transcript (hereinafter "Tr.") at 189-282). In his application, Plaintiff alleged disability due to post-traumatic stress disorder ("PTSD"), depression, lower back injury, left arm injury, and closed head injury. (Tr. 259). Plaintiffs applications for SSD and SSI were initially denied on August 4, 2009. (Tr. 77-84). Plaintiff timely filed a request for a hearing before an Administrative Law Judge ("ALJ"). (Tr. 87-88). On May 16, 2011, Plaintiff, represented by a non-attorney, testified at a hearing before Administrative Law Judge ("ALJ") Jennifer Whang. (Tr. 36-58). Vocational Expert ("VE") Alina Kurtanich[1] also appeared and testified. (Tr. 54-57).

On May 23, 2011, the ALJ issued a decision finding Plaintiff not disabled. (Tr. 61-72). On June 5, 2013, the Appeals Council denied review, rendering the ALJ's decision the final decision of the Commissioner. (Tr. 1-4). Plaintiff commenced this civil action appealing the final decision of the Commissioner on August 1, 2013. (Dkt. 1).

B. The Non-Medical Evidence

Plaintiff was 45 years old on the date of the hearing. (Tr. 42). He last worked driving and unloading trucks in January 2009. (Tr. 43). In March 2009, Plaintiff was involved in a car accident which resulted in the death of his brother and in serious injury to his niece. (Tr. 359).

Plaintiff testified that he lived in an apartment by himself. (Tr. 42). He claimed that he is unable to drive and that he "mostly" takes public transportation to get places, in addition to riding his bike. ( Id. ). He testified that he attends therapy three times per week and attends physical therapy three times per week. (Tr. 44). Plaintiff claimed that he was unable to perform household tasks such as cooking, cleaning, laundry, and grocery shopping, and further testified that an aide comes to his home four times per week to assist him. (Tr. 44, 46). Plaintiff testified that he has had an aide since his accident in March 2009. (Tr. 46). According to Plaintiff, his aide also assists him in obtaining his medication. (Tr. 44).

Plaintiff testified that he suffers from violent seizures that sometimes cause him to black out. (Tr. 45). He said that these seizures are controlled by medication (Dilantin) but that the medication causes him to feel "woozy." ( Id. ). Plaintiff further claimed to be taking Abilify (an anti-depressant) and a drug called Fosin for his deviated septim. (Tr. 46). According to Plaintiff, he suffers from side effects of Dilantin including drowsiness and an unwillingness to go outside. ( Id. ). Plaintiff also testified that he was only able to take Abilify while in a "safe, secure environment" because he sometimes did not know what was going to happen when he took it. (Tr. 49).

Plaintiff testified that the accident had "rearranged" his whole life. (Tr. 50). He is now on daily medication. ( Id. ). Plaintiff claimed that he has people calling him and visiting him to remind him to take his medication. (Tr. 51). Plaintiff further testified that his aide helped him with "hygiene stuff, " including bathing, but that he was able to brush his own teeth. ( Id. ). He stated that his aide cooks for him. ( Id. ). Plaintiff further testified that he receives services from Meals on Wheels. (Tr. 52). Plaintiff also claimed that he was "memory issues" and that his memory is "not good." ( Id. ).

Plaintiff testified that after his accident, he was not able to sit for more than 30 minutes to an hour without pain. (Tr. 47). Plaintiff further claimed to be unable to lift due to a previous shoulder injury. ( Id. ). Plaintiff testified that he sometimes suffered from falls as a result of his seizure disorder. (Tr. 49). He recounted an incident in which he had a seizure while on a ladder and fell and injured himself. ( Id. ).

At the time of the hearing, Plaintiff testified that he was seeing a therapist named "Deborah" and a psychologist named "Dr. Matthews, " from Rochester Rehabilitation. (Tr. 48). Plaintiff explained that he suffered from flashbacks to his accident and that he was unable to leave his home as a result. ( Id. ).

C. Vocational Expert's Testimony

VE Alina Kurtanich also testified before ALJ Whang. (Tr. 54-58). VE Kurtanich testified that Plaintiff had previously been employed as a truck driver and a warehouse worker. (Tr. 55-56). The ALJ presented VE Kurtanich with a hypothetical question. (Tr. 56). The VE was asked to consider someone of Plaintiffs age, education, and experience who could perform light work; required a sit/stand option every 30 minutes; should never climb ladders, ropes, or scaffolds; should avoid hazards, including moving machinery and unprotected heights; was limited to simple, routine, and repetitive tasks; requires a low-stress job, defined as having only occasional decision-making and occasional changes in the work setting; and should have only occasional direct interaction with the public. ( Id. ). The VE testified that a hypothetical individual with these abilities and restrictions would nut be able to perform any of Plaintiff's past work. ( Id. ). The VE further testified that a hypothetical individual with these abilities and restrictions would be able to perform occupations that existed in significant numbers in the national economy, including marker, garment sorter, and electronic worker. (Tr. 56-57).

The ALJ asked the VE to consider a hypothetical individual with the abilities and restrictions listed above, but whom was limited to sedentary work. (Tr. 57). The VE testified that such a hypothetical individual would be able to perform occupations that existed in significant numbers in the national economy, including surveillance system monitor, document preparer, and credit checker. ( Id. ).

Finally, the ALJ asked the VE to consider a hypothetical individual with the abilities and restrictions listed above who had any of the additional limitations: (1) expected to be off task more than 20 percent of the day due to concentration issues; (2) would require unscheduled breaks; or (3) would be absent more than three times per month. ( Id. ). The VE testified that "[e]ach one of those additional limitations by itself precludes the claimant from any employment in the national economy...." ( Id. ).

D. Summary of the Medical Evidence

The Court assumes the parties' familiarity with the medical record, which is summarized below.

On March 2, 2009, Plaintiff was treated at Crittendon Hospital Medical Center in Rochester, Michigan, following a motor vehicle accident. (Tr. 336). Plaintiff was seen in the emergency department. ( Id. ). Plaintiff reported that he had hit his head on the glass and that he had a headache with pain at a level of nine out of ten. ( Id. ). Plaintiff also complained of pain in his left ribs. ( Id. ). A CAT scan of the brain revealed no acute intracranial process and a rib study showed no fracture. (Tr. 337, 339-40). Plaintiff was diagnosed with (1) acute motor vehicle accident; (2) acute left rib contusion; and (3) scalp contusion with cephalalgia. (Tr. 337). He was given a prescription for Darvocet and instructed to follow up in three days. ( Id. ).

On March 21, 2009, Plaintiff was treated in the emergency department at William Beaumont Hospital. (Tr. 348-54). He complained of left arm pain, groin pain, rib pain, and hematuria (blood in urine). (Tr. 349). Plaintiff had abrasions on his left forearm from which glass was removed and had left shoulder pain upon examination. ( Id. ).

On May 21, 2009, David M. Cowan, Ph.D., and Sylvia A. Malcore, M.A., performed an intake evaluation on Plaintiff. (Tr. 359-61). Plaintiff was referred for this evaluation by M. Khan, M.D., due to PTSD and depression. (Tr. 359). Dr. Cowan and Ms. Malcore's report indicates that Plaintiff reported anxiety, flashbacks, feelings of helplessness, decreased energy, suicidal ideation, and depression. ( Id. ). Plaintiff was suffering from sleep difficulties and reported past trauma (including witnessing a shooting and physical altercations with his step-father) and a previous suicide attempt. ( Id. ). Dr. Cowan and Ms. Malcore observed that Plaintiff did not make regular eye contact, frequently stared at his feet, was disorganized in his presentation, and had difficulty remembering the details of his treatment history. (Tr. 360).

Dr. Cowan and Ms. Malcore observed that Plaintiffs depression had been aggravated by the accident in March 2009. ( Id. ). They further observed that he had isolated himself and avoided social interaction as a result of his anxiety. ( Id. ). They determined the following diagnoses: (1) major depression, recurrent, with psychotic features (provisional), aggravated by motor vehicle accident; (2) PTSD, secondary due to motor vehicle accident; and (3) learned insomnia associated with major depression and PTSD.[2] (Tr. 361). Dr. Cowan and Ms. Malcore recommended a course of cognitive-behavioral psychotherapy and medication management of Plaintiffs symptoms. ( Id. ). They recommended a psychiatric referral and follow-up. ( Id. ).

On May 28, 2009, Plaintiff treated with Dr. Cowan and Ms. Malcore for individual cognitive-behavioral therapy. (Tr. 362). Plaintiff and his providers discussed initial treatment goals. ( Id. ). Plaintiff reported having a great deal of difficulty falling and remaining asleep and reported ...


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