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Castillo v. Colvin

United States District Court, S.D. New York

December 16, 2014

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


ANALISA TORRES, District Judge.

Plaintiff Mayra Castillo filed this action pursuant to section 205(g) of the Social Security Act, as amended, 42 U.S.C. ยง 405(g) ("the Act"), to challenge a final decision of the Social Security Administration ("SSA") denying her application for disability insurance benefits under the Act. Plaintiff and the Commissioner ("defendant") have cross-moved for judgment on the pleadings.

For the reasons set forth below, we recommend that plaintiff's motion be granted in part, that defendant's motion be denied, and that the case be remanded for further administrative consideration.


I. Procedural History

Ms. Castillo filed an application for disability insurance benefits ("DIB") on November 14, 2011, claiming that she had become disabled on December 1, 2010. (Admin. R. Tr. ("Tr.") 126). The Social Security Administration ("SSA") denied her application after initial review on January 4, 2012. (Id. at 74). Plaintiff subsequently requested a hearing to review the adverse determination. (Id. at 90).

A review hearing was held before Administrative Law Judge ("ALJ") Mark Solomon on June 22, 2012, and plaintiff was represented by counsel at that hearing. (Tr. 14). ALJ issued his decision denying plaintiff benefits on July 12, 2012. (Id. at 8-23). The Appeals Council denied plaintiff's request for review of the ALJ's decision on July 3, 2013, making the Commissioner's determination final. (Id. at 1).

Plaintiff had previously filed an application for DIB on January 31, 2011. (Tr. 14). The SSA denied her application on May 6, 2011, and that decision was made final based on administrative action and not subject to further review. (Id.).

II. The Pertinent Record

A. Plaintiff's Testimony at the Hearing and Submissions

Ms. Castillo was born in 1960 in the Dominican Republic. (Tr. 44). Her formal education there ended at either the fifth or sixth grade, and she cannot speak English.[1] (Id.). She immigrated to the United States in 1994, and has been a lawful permanent resident since 2006. (Id. at 45, 130). Ms. Castillo is a divorced mother of four children, two of whom are adults, one of whom is deceased, and the youngest of whom was sixteen at the onset of her alleged disability. (Id. at 127, 236). Her teenage daughter was living with her at the time of the hearing before the ALJ. (Id. at 49).

Plaintiff testified that she had not worked since the onset of her disability in December 2010. (Tr. 46). Prior to that time she had worked at cleaning offices and stores for most of her professional life. (Id. at 47-48). She testified that she could not do that work anymore and had stopped working in that capacity sometime in the year prior to her disability onset. (Id. at 48). Prior to December 2010, plaintiff had worked as a home care attendant for roughly six or seven months, but terminated that position because "[w]ith my back, my pain, and my knees I couldn't deal with the patients." (Id. at 47). She also claimed that her arms hurt from arthritis. Id.). Her "Work History Report" indicates that she worked for Secure Cleaners from 1998 to 2006, and as a Home Attendant in 2010. (Id. at 172). The SSA Disability Report indicates that plaintiff was self-employed as an office cleaner from the Spring of 1996 until the Winter of 2009. (Id. at 139). She reported working 6.5 hours per day for five days a week at $10.00 per hour as an office cleaner through the Winter of 2009, and then 5.5 hours daily for 3.5 days a week at $8.00 per hour as a home attendant in 2010. (Id.).

Plaintiff testified that her primary disabling conditions are her back pain and depression. (Tr. 51). She indicated that she had been undergoing therapy for her physical ailments in her back and leg for a year prior to the hearing. (Id. at 49). In her concluding statement she reiterated that she has "the pains because I have a deviation in my back. I have arthritis in the entire body." (Id. at 53). She testified that she could travel by herself by bus and does not require an assistive device for walking. (Id.). Ms. Castillo also said that she had visited the Dominican Republic with her two daughters for eight days in December 2011. (Id. at 50).

At the time of the hearing, Ms. Castillo lived with her 18-year-old daughter. (Tr. 49). Ms. Castillo testified that she was able to bathe and shower by herself, as well as fix her hair and put on jewelry. (Id. at 49-50). However, she spent most of the day lying down, watching television and reading the Bible. (Id. at 50). She explained that her back hurts when she has been sitting, so that she has to move around or lie down; she can only sit normally for 20 to 30 minutes at a time. (Id.).

Regarding her psychiatric condition, plaintiff testified that she had been seen by a psychiatrist for one year at the time of her hearing. (Tr. 48). She reported that she experiences dizziness and drowsiness from the prescriptions for her depression. (Id. at 51). She also testified that she is "always crying. I tell [my psychiatrist] about my, so many problems. I don't feel like doing anything. I spend three or four days. I don't even want to bathe myself to go out anything." (Id. at 52). She cried during this portion of her testimony and explained that it was "[b]ecause I see what my life turned into." (Id.). She is unable to watch a television show in Spanish from start to finish: "I get lost thinking about things and like that." (Id. at 51-52).

B. Medical Records: Treating Physicians and Mental Health Professionals

1. Dr. Elsa J. Reyes

The record includes a "Physician's Report for Claim of Disability" submitted by Dr. Elsa J. Reyes on June 12, 2012. Dr. Reyes reported treating plaintiff every three to four months from April of 2003 through the date of her report. (Tr. 272-77). No treatment notes from Dr. Reyes were included in the administrative record. No specialization is indicated for Dr. Reyes, but Internet research confirms that Dr. Reyes practices internal medicine with Hispaniola Medical Care, P.C. in New York City.[2]

Dr. Reyes reported that plaintiff's symptoms were low back pain and back pain with clinical findings of minimal dextroscoliosis, [3] moderate to severe levoscoliosis, [4] small osteophytes[5] at the L4-5 levels and mild medial compartmental narrowing of the left knee. (Id. at 273). Dr. Reyes relied on a thoracic x-ray and a lumbar x-ray to support these diagnoses. (Id.). Her prognosis for Ms. Castillo's condition was guarded. (Id.). She indicated that these physical conditions did not require Ms. Castillo to lie down during the day. (Id.). Dr. Reyes confirmed that plaintiff had received physical therapy and an orthopedic consult. (Id. at 274). During treatment, Dr. Reyes had prescribed Voltaren gel, 200mg of Celebrex, 500mg of Tylenol, 15mg of Mobic, and 10mg of Flexeril, noting that the Celebrex and pain medications were indicated for the levoscoliosis and the osteoarthritis. (Id.).

Dr. Reyes evaluated plaintiff's functional capacities. She estimated that Ms. Castillo was able to sit for one to two hours and stand or walk for thirty minutes during an entire eight-hour workday. (Tr. 274). Plaintiff would be able to lift and/or carry a maximum of 20 pounds and occasionally perform a variety of activities, including bending, squatting, crawling, climbing, and reaching. (Id. at 275). Plaintiff could not use her hands for repetitive actions, such as simple grasping, pushing and pulling of arm controls, and fine manipulations. (Id. at 276). She indicated mild restrictions for activities involving heights, being around moving machinery, and driving a car, along with moderate restrictions for exposure to marked changes in temperature and humidity and exposure to dust, fumes, and gases. (Id.) Dr. Reyes also noted plaintiff's ability to travel alone on a daily basis by bus and/or subway. (Id. at 277).

2. Emma L. Bowen Community Service Center (also known as Upper Manhattan Mental Health Center, Inc.)

Treatment notes from the Emma Bowen Community Service Center, also known as the Upper Manhattan Mental Health Center, Inc., document the psychiatric care and clinical psychology treatment plaintiff received at that clinic between April 11, 2011 and February 26, 2012. (Tr. 236-69). The report of consulting psychologist Haruyo Fujiwaki (see discussion p. 18 infra) confirms that plaintiff reported seeing a psychiatrist monthly and a therapist weekly at the Upper Manhattan Mental Health Center for the year prior to Dr. Fujiwaki's evaluation in December of 2011; however, the record lacks treatment notes to support such regular care during 2011. (See discussion p. 11 infra).

a. Initial Psychiatric Examination

Dr. Y. Kury, a psychiatrist, conducted an initial psychiatric assessment of Ms. Castillo on April 11, 2011. (Tr. 236-41). Dr. Kury diagnosed plaintiff on Axis I with major depressive disorder, severe (DSM-IV 296.33), [6] post-traumatic stress disorder (DSM-IV 309.81) and a GAF score of 55.[7] Dr. Kury deferred her Axis II diagnosis, and indicated back pain under Axis III. (Id. at 240). Under Axis IV Dr. Kury listed the death of Ms. Castillo's son in 2007 and Ms. Castillo's having been abandoned by her mother at birth as psychosocial factors affecting her condition. (Id.). Dr. Kury referred Ms. Castillo for care through the adult outpatient unit, including psychotherapy, and prescribed Lexapro[8] and Buspirone[9] for depression and anxiety, as well as the sleep aid Zolpidem.[10] (Id.).

Dr. Kury based her diagnosis on a patient history and clinical evaluations addressing plaintiff's interview behavior, perceptions, cognitive functions, impulse control, judgment, and personality traits. (Tr. 236-40). Ms. Castillo's psychosocial history included the death of her son from stomach cancer four years earlier, concern over the impending death of her biological father from whom she had been estranged for much of her life, sexual abuse at the hands of cousins when she was six years old, and verbal abuse by an aunt who raised her when her mother died. (Id. at 236-37). Dr. Kury noted that plaintiff's appearance was appropriate and her thought process was coherent with no signs of delusions. (Id. at 238). Plaintiff was tearful during the session, and presented with fair memory, a ninth-grade level of education, and fair judgment. (Id. at 236-40).

b. Psychotherapy Sessions

Following the initial intake with Dr. Kury, Ms. Castillo saw Lena Melendez, L.C.S.W. at the Emma L. Bowen Community Service Center on April 27, 2011 for a follow-up psychotherapy appointment. (Tr. 242-51). Notes from additional psychotherapy treatments at the same clinic indicate that Milagros Nunez, LCSW, treated plaintiff on January 3, 2012, January 11, 2012, February 1, 2012, and February 15, 2012. (Id. at 257-65). The records do not indicate whether Ms. Castillo received any treatment between the April 2011 appointment and January 2012.

During the April 27, 2011 visit, Ms. Melendez elaborated on the patient history, clarifying that Ms. Castillo had been raped by a man in his 40s when she was six to seven years old. (Tr. 248). She confirmed that plaintiff has a 6th grade education and documented that she was staying at home, oversleeping, and binge eating. (Id.). Ms. Melendez noted plaintiff's complaints that she "hears voices calling her name... feels people are next to her." (Id. at 249). Ms. Melendez also reported that plaintiff admitted suicidal ideation but denied having made any attempts. (Id. at 245). The treatment notes list as strengths that plaintiff is "domiciled, motivated for treatment, and has some insight into her core issues." (Id. at 250). The notes list as weaknesses that she is "isolated, [has] few social supports, [has suffered] losses, [and has experienced] severe childhood sexual abuse." (Id.). Social isolation, depression, and anxiety were identified as patient's problems. (Id.).

The next psychotherapy appointment was on December 14, 2011, when Ms. Nunez provided support to plaintiff for an upcoming trip to the Dominican Republic. (Tr. 257). The treatment notes from that session indicated that plaintiff was complying with her medication and was not experiencing side effects. (Id.). Ms. Castillo reported "feeling very nervous" and "suffering from fear of flying, " but explained that she was nonetheless making the trip to visit her son's grave for the first time and to spend time with her grandson from that deceased son. (Id.). Ms. Nunez addressed with plaintiff relaxation exercises and therapy for feelings related to death. (Id.).

A follow-up session on January 3, 2012 centered on plaintiff's depression and anxiety, as well as her concern about her biological father's severe illness. (Tr. 258). The therapy focused on plaintiff's early childhood abandonment. (Id.). A session one week later continued to focus on patient's depression and anxiety, which had been heightened by her father's terminal illness. (Id. at 260). Plaintiff failed to show for an appointment on January 26, 2012. (Id. at 261). On February 1, 2012, Ms. Nunez noted that plaintiff's father had died, and that she "appeared very depressed and tearful. Denied suicidal/homicidal ideations." (Id. at 262). Ms. Castillo expressed deep feelings of depression regarding her son's death and now her father's, and also complained of intense physical pain from arthritis. (Id.).

In the last psychotherapy session included in the record, on February 15, 2012, Ms. Nunez noted on that plaintiff complained of a lot of pain, but no side effects from her medications. (Tr. 265). Ms. Nunez found that plaintiff continued to appear depressed and anxious, and their therapy revolved around her grieving of her father and the challenges of raising her 17-year-old daughter as a single parent. (Id.). Treatment plan notes mentioned continuing physical therapy. (Id.)

c. Psychiatric Care

Treatment notes indicate that during the same time frame in which Ms. Castillo received psychotherapy from social workers at the Emma L. Bowen Community Service Center, she also received treatment from Dr. Hilda Brewer, M.D., a staff psychiatrist. (Tr. 252, 256, 259, 264). Dr. Brewer also submitted a summarizing "Mental Assessment of Ability to do Work-Related Activities" dated February 26, 2012). (Id. at 266-69).

Dr. Brewer entered a change on July 7, 2011 from Dr. Kury's initial diagnosis to major depressive disorder, recurrent, severe, with psychotic features (DSM-IV 296.34) and post-traumatic stress disorder (DSM-IV 309-81). (Tr. 252). She continued to defer an Axis II diagnosis, and evaluated her GAF at 55. (Id.). Ms. Castillo was not deemed to be a risk for substance abuse. (Id. at 255). At the next appointment, on December 6, 2011, Dr. Brewer noted that plaintiff reported improvement with medicine and that she was not experiencing side effects. (Id. 256). Plaintiff reported "hearing voices calling her name. She sees shadows, but less than in the past." (Id.). Ms. Castillo further informed Dr. Brewer that she was eating better and sleeping well at that time. (Id.). Considering the reported hallucinations, Dr. Brewer increased the medications Geodon[11] and Prozac, [12] and renewed the BuSpar.

Dr. Brewer treated Ms. Castillo again on January 4, 2012 for complaints of not sleeping well. (Tr. 259). She reported no side effects from her medications, and noted fewer auditory and visual hallucinations. (Id.). Dr. Brewer increased the Prozac for depression and renewed the Geodon and BuSpar. (Id.). She also prescribed Ambien to assist with the sleep issues. (Id.).

The last treatment note from Dr. Brewer details a patient visit on February 3, 2012, in which Ms. Castillo reported sleeping better with the Ambien, but not eating well, and generally being dysphoric. (Tr. 264). Dr. Brewer noted that plaintiff appeared upset that she could not attend her father's funeral. (Id.). Ms. Castillo reported that she was still seeing shadows, but denied auditory hallucinations. (Id.). Dr. Brewer renewed plaintiff's prescriptions for Geoden, Busper, and Ambien. She also increased plaintiff's Prozac dosage. (Id.).

Dr. Brewer's summarizing patient evaluation, submitted on February 26, 2012, evaluated plaintiff's ability to adjust to a job. She designated as "poor or none" plaintiff's ability to follow work rules, interact with supervisors, deal with work stresses, and function independently. (Tr. 267). She evaluated plaintiff's occupational adjustment abilities as "fair" for relating to co-workers, dealing with the public, and using judgment. (Id.). Dr. Brewer specified plaintiff's limitations as appearing "depressed, tearful, anxious and with panic attacks. Memory and concentration problems as well as auditory and visual hallucinations." (Id.).

As for Ms. Castillo's ability to "understand, remember and carry out complex job instructions, " Dr. Brewer rated her as "poor or none." (Id. at 268). Dr. Brewer rated plaintiff as "fair" for her abilities to "understand, remember and carry out detailed, but not complex, job instructions, " and to "understand, remember and carry out simple job instructions." (Id. at 268). Dr. Brewer rated plaintiff's ability to "behave in an emotionally stable manner" and "relate predictably in social situations" as "poor or none." (Id.). She rated plaintiff's ability to "maintain personal appearance" and "demonstrate reliability" as fair. Dr. Brewer attributed the ratings to plaintiff's "many and cumulating problems." (Id.). Dr. Brewer indicated that plaintiff would not be able to "manage benefits in... her own best interest." (Id. at 269). She reported additional work-related limitations due to plaintiff's fear of noise and people, as well as her problems with concentration, memory, and finishing tasks. (Id.).

3. Other Treating Physicians

A page in the record dated June 5, 2012 entitled "Claimant's Medications" indicates prescriptions for Lexapro, fluoxetine, amlodipine, [13] and cyclobenzaprine[14] by a physician named "Dr. Rosario." (Tr. 280). There is no indication of who this doctor is or in what context plaintiff came to have medications prescribed by him or her.

C. Medical Records: Consulting Physicians and Mental Health Professionals

1. Consulting Psychologist Haruyo Fujiwaki

Dr. Haruyo Fujiwaki, of Industrial Medicine Associates, P.C. of New York City, conducted a psychiatric evaluation of Ms. Castillo on December 19, 2011. (Tr. at 209). Plaintiff was accompanied by her daughter and assisted by a Spanish translator. (Id.). The consultant took a patient history and detailed her current psychological and physical functioning. (Id. at 209-10).

During the examination, Dr. Fujiwaki noted that plaintiff responded cooperatively, related and presented adequately, dressed casually, groomed adequately and spoke clearly, with no evidence of hallucination, delusions, or paranoia. (Tr. 210). Plaintiff's sensorium was clear, as were her insight and judgment. (Id.). Dr. Fujiwaki described her mood and affect as dysphoric, her attention, concentration, and recent and remote memory skills as mildly impaired, and her cognitive functioning as below average. (Id. at 211).

Dr. Fujiwaki determined that plaintiff would be able to "follow and understand simple directions and instructions, perform simple tasks independently, maintain attention and concentration, maintain a regular schedule, [and] learn new tasks." (Tr. 211). Dr. Fujiwaki noted that while plaintiff can make appropriate decisions, she "can perform complex tasks with some difficulty and needs supervision." (Id.).

Dr. Fujiwaki diagnosed plaintiff on Axis I with "depressive disorder, NOS [not otherwise specified]" and "anxiety disorder, NOS [not otherwise specified], " and deferred an Axis II assessment. (Tr. 211). His Axis III indication was that high blood pressure, heart disease, back pain, and bone aches affected her psychiatric conditions. (Id. at 211-212). He did not provide an Axis IV or Axis V analysis. He recommended continued psychological and psychiatric testing and gave her a fair prognosis. (Id. at 212).

2. Consulting Physician Aurelio Salon

Dr. Aurelio Salon, a physician practicing internal medicine at Industrial Medicine Associates, P.C. of New York City, conducted a physical evaluation of Ms. Castillo on December 19, 2011. (Tr. 213-17). Dr. Salon took a patient history, reviewed her medications, and measured her height (62"), weight (144 lbs.), blood pressure (100/70), pulse (72 bpm), and respiration (14/min). (Id. at 213-14).

Dr. Salon noted that plaintiff was obese, but did not otherwise appear to be in any acute distress. (Tr. 214). He observed that her gait, stance, skin and lymph nodes, chest and lungs, head and face, eyes, ears, nose, throat, neck, and heart all looked and functioned normally. (Id. at 214-215). Dr. Salon also reviewed an x-ray of plaintiff's lumbosacral spine conducted December 20, 2011 by IMA Disability Services (id. at 217) and confirmed from that image that she had a mild levoscoliosis of the lumbar region. (Id. at 216).

Dr. Salon diagnosed a history of anxiety/depression, low back pain, hypertension, arthritis, and obesity. (Tr. at 216). Dr. Salon opined that "there are no objective findings to support the fact that the claimant would be restricted in her ability to sit or stand, or in her capacity to climb, push, pull, or carry heavy objects." (Id.).

3. Psychiatric Review by V. Reddy

An individual identified only as "Reddy, V., Psychology" prepared a Psychiatric Review Technique (Form SSA-2506-BK) on January 4, 2012. (Tr. 218-31). There is no indication of the professional qualifications of this consultant. This review of records was done without forms that Ms. Castillo was to complete, nor did it consider records from her treating psychiatrists and therapists. (Id. at 234).

The consultant evaluated plaintiff's psychiatric conditions with respect to the "Criteria B"[15] and "Criteria C"[16] of Listings 12.04 and 12.06 and noted that plaintiff had an affective disorder resulting in moderate difficulties in maintaining concentration, persistence or pace; a mild limitation in daily living activities and maintaining social functioning; and no history of repeated episodes of deterioration. (Tr. 228-29). Based on the previous findings, he stated that the evidence did not establish the presence of the "C criteria." (Id. at 229).

The consultant also completed a Mental Residual Functional Capacity Assessment on January 4, 2012. (Tr. 232-235). This assessment indicated that plaintiff's abilities to remember locations, work-like procedures, and "very short and simple instructions" were not significantly limited. (Id. at 232). However, plaintiff was deemed moderately limited in understanding and remembering detailed instructions. (Id.). In the areas of "sustained concentration and persistence", plaintiff's "ability to carry out detailed instructions, " "ability to maintain attention and concentration for extended periods, " and "ability perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances" were also considered to be moderately limited. (Id.). Plaintiff was otherwise not found to be significantly limited in this area. (Id. at 232-233). Other than rating plaintiff as ...

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