United States District Court, N.D. New York
PETER W. ANTONOWICZ, ESQ., Office of Peter W. Antonowicz, Rome, New York.
HEETANO SHAMSOONDAR, ESQ., Special Assistant U.S. Attorney, Social Security Administration, Office of Regional General Counsel Region II, New York, New York.
REPORT-RECOMMENDATION AND ORDER
CHRISTIAN F. HUMMEL, Magistrate Judge.
Plaintiff Amy B. Beckwith ("Beckwith") brings this action pursuant to 42 U.S.C. § 405(g) seeking review of a decision by the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits ("DIB") and supplemental security income ("SSI") under the Social Security Act ("Act"). Beckwith moves for a finding of disability, and the Commissioner cross-moves for a judgment on the pleadings. Dkt. No. 15; Dkt. No. 18. For the following reasons, it is recommended that the matter be remanded.
Born on January 14, 1978, Beckwith was thirty-two years old on the alleged disability onset date. See, e.g., Dkt. No. 9-3, at 2. On June 24, 2010, Beckwith suffered a left middle cerebral artery stroke. Dkt. No. 9-7, at 3, 5, 135-37. She was hospitalized for six days, and subsequently treated with Coumadin, Lipitor, Lovenox, and, as needed, Tylenol. Dkt. No. 9-7, at 5. She also attended speech and occupational therapies while admitted, and was given a referral to continue with outpatient treatment. Id. at 136. At the time of her discharge from the hospital, Beckwith complained of difficulty "finding words, " but her speech was reported as "close to baseline" and her comprehension was normal. Id. at 136. She also noted some weakness in her right hand. Id. at 135. Beckwith thereafter complained of headaches - which she attributed to the stroke - and difficulty sleeping through the night due to pain in her legs. Dkt. No. 9-2, at 57-58. She explained that the difficulty sleeping led to fatigue during the day and required her to take daytime naps. Id. at 58. She also alleged trouble communicating and stated that she needed reminders to take her medication. Id. Beckwith can assist with some household chores, such as preparing meals, grocery shopping, and folding laundry if she is given assistance or a reminder. Id. at 59-60. She also assists with some child care duties while her boyfriend is at work, but most of the child care responsibilities are handled by her boyfriend. Id. at 59. Beckwith has a medical history of hypertension and a miscarriage. Dkt. No. 9-7, at 135.
Beckwith graduated from high school and worked for six years as a cashier at Wal-Mart until her alleged disability onset date, June 24, 2010. Dkt. No. 9-2, at 54-55. She previously worked as an assistant manager at Dollar General and as a babysitter. Id. She has been unemployed since her stroke. Dkt. No. 9-6, at 3. She lives with her boyfriend and their four minor children. Dkt. No. 9-2, at 58-59.
B. Procedural History
On July 2, 2010, Beckwith protectively filed a Title II application for a period of disability and disability insurance benefits and protectively filed a Title XVI application for SSI claiming an onset date of June 24, 2010. Dkt. No. 9-6, at 4, 10. Those applications were denied on September 24, 2010. Dkt. No. 9-4, at 2-6. Beckwith filed a request for a hearing. Id. at 10-11. A hearing was held before an Administrative Law Judge ("ALJ") on September 6, 2011 and January 30, 2012. Dkt. No. 9-2, at 39-68. In a decision dated February 28, 2012 (Dkt. No. 9-2, at 22-33), the ALJ determined that Beckwith was not entitled to disability benefits. Id. at 2. Beckwith timely filed a request for review. Id. at 17. On August 9, 2013, the Appeals Council denied Beckwith's request for review, finalizing the ALJ's decision. Id. at 10-14. Thereafter, Beckwith commenced this action.
Beckwith had been treating with Dr. Nicoletta Tallandini, M.D. ("Dr. Tallandini"), her primary care physician, since 1996. Dkt. No. 9-7, at 179. On June 27, 2011, Dr. Tallandini reported on a Medical Source Statement - physical ("Stroke Residual Functional Capacity Questionnaire") that Beckwith had no physical limitations on the number of hours that she can sit in a typical workday, but had a thirty-minute standing limit. Id. at 180-81. Dr. Tallandini reported that Beckwith suffered from headaches, difficulty remembering, confusion, difficulty solving problems, and also had problems with judgment. Id. at 179. She further reported that Beckwith "often" had difficulty with pain or fatigue that is severe enough to interfere with attention and concentration." Id. at 180. Dr. Tallandini recommended that Beckwith avoid concentrated exposure to fumes, odors, dust, and gases. Id. at 183. She checked "yes" to a question that asked whether Beckwith's impairments were likely to cause good and bad days, and concluded that Beckwith would likely be absent from work about four days per month. Id. at 183-84. Dr. Tallandini concluded that Beckwith's symptoms were "reasonable [sic] consistent" with the "symptoms and functional limitations described in [her] evaluation." Id. at 180. Dr. Tallandini reported that Beckwith's prognosis was "fair." Id. Finally, Dr. Tallandini concluded that Beckwith was "capable of low stress jobs." Id. at 181.
In a Medical Source Statement-mental dated January 27, 2012, Dr. Tallandini reported that Beckwith had (1) a "moderate" ability to deal with the public and maintain her personal appearance; and (2) "marked" difficulty in: following rules; relating to family and acquaintances; using judgment; relating to authority figures; dealing with stress; functioning independently; maintaining attention and concentration; understanding; remembering; carrying out simple, detailed, and complex instructions; behaving in an emotionally-stable manner; relating predictably in social situations; and demonstrating reliability. Dkt. No. 9-7, at 217-18. Her "reported diagnosis" was "S/P CVA,  migraines, deficit's [sic] in memory & ability to concentrate." Id. at 218. Dr. Tallandini further reported that Beckwith could manage benefits with assistance. Id. She concluded that Beckwith's impairments were likely to produce good and bad days. Id. at 219. Finally, Dr. Tallandini reported that Beckwith would likely be off task at least fifty percent of the time in an eight-hour work day and absent more than four days per month. Id.
Kelly Mangione, MS, CC-SLP, Beckwith's treating speech therapist, completed an initial evaluation on July 14, 2010. Dkt. No. 9-7, at 8-12. Beckwith "presented with clear and intelligible speech production." Id. at 9. No vocal dysfunction was observed, and Mangione determined that Beckwith's reading and writing abilities appeared to be at her premorbid levels. Id. Beckwith was given the Western Aphasia Battery-Revised assessment and scored a 92.7 out of 100, indicating "mild aphasic deficit." Id. at 8. Beckwith provided "appropriate responses" to conversational questions during the Spontaneous Speech subtest. Id. In the Auditory Verbal Speech subtest, Beckwith "presented with functional comprehension as evident by correctly answering complex yes/no questions and multiple-step commands." Id. Beckwith "had no significant difficulties with the Repetition subtest." Id. In the Naming and Wording Finding test, Beckwith "named objects, named animals given a time restriction, completed sentences, and provided appropriate responses to questions with minimal difficulty." Id. She "struggled slightly with the time restricted naming task and was only able to name 7 animals in one minute." Id. Further, Mangione observed that Beckwith's word finding difficulties "mildly impacted her during conversation." Id. However, Beckwith's RIPA-2 score reflected "moderate to severe cognitive deficits." Id. at 9. Mangione noted that Beckwith's "processing varied greatly throughout the evaluation; at times she was quick to respond but at other times she struggled to gather her thoughts." Id. However, Mangione observed that Beckwith's "difficulty with processing was not consistent with one type of task or assessment." Id. When asked to read a short paragraph and answer questions, Beckwith could recall information to answer all questions. Id. Thus, Mangione concluded that the RIPA-2 score "does not reflect [Beckwith's] true abilities; she may have begun to fatigue during the last portion of testing." Id. Mangione concluded that Beckwith's testing results were "very inconsistent, and noted that Beckwith "didn't appear completed [sic] engaged during the evaluation." Id. Despite the "significant deficits" found during cognitive testing, Mangione "believed that [Beckwith's] answers/responses were not reflective of her true capabilities." Id. For the reporting period between July 21, 2010 and August 21, 2010, Mangione noted that Beckwith continued to present inconsistent word finding difficulties. Dkt. No. 9-7, at 13. She further noted that Beckwith "demonstrates very functional speech in conversation during session, as well as in OT (per OT), and [with] others in waiting area." Id. Beckwith "initially stated cog[nitive] deficits were not new but later stated they were as a result of stroke. Malingering cannot be ruled out at this time." Id.
Consulting psychologist Dennis M. Noia, Ph.D. ("Dr. Noia"), performed a psychiatric examination of Beckwith on or about September 20, 2010. Dkt. No. 9-7, at 70-73. Dr. Noia concluded that Beckwith's "attention and concentration was in tact" as Beckwith was "able to do counting, some simple calculations (with difficulty), and serial 3s." Id. at 72. Dr. Noia further concluded that Beckwith's "recent and remote memory skills were moderately to severely impaired. She was able to recall three objects immediately but none after five minutes; restate 5 digits forward and 2 digits backward." Id. Dr. Noia found Beckwith's voice clear and speech fluent, with adequate receptive and expressive language. Id. at 71. Further, he found her thought processes to be "goal directed with no evidence of delusions, hallucinations, or disordered thinking." Id. at 72. Beckwith reported to Dr. Noia that she is able to dress, bathe, and groom herself; cook and prepare food with assistance; shop with assistance; help care for her children; and get along with friends and family. Id. She reported that she cannot complete general cleaning or laundry, manage money, drive, or use public transportation. Id. Dr. Noia concluded that Beckwith "appear[ed] to be capable of understanding and following simple instructions and directions, " "capable of performing simple and some complex tasks with supervision and independently, " and "capable of maintaining attention and concentration for tasks." Id. Further, he concluded that she "can regularly attend to a routine and maintain a schedule" and appears "capable of making appropriate decisions, " "relat[ing] to and interact[ing] moderately well with others, " and "capable of dealing with stress." Id. at 73. Dr. Noia ultimately concluded that the examination results "are consistent with a possible cognitive disorder following her stroke" and "recommended that Ms. Beckwith be evaluated for the possibility of a cognitive disorder." Id.
Consulting psychologist, Dr. T. Andrews ("Dr. Andrews"), using a Mental Residual Functional Capacity Assessment, reported that Beckwith is "moderately limited" in her ability to understand, remember, and carry out detailed instructions; maintain attention and concentration for extended periods; and respond appropriately to changes in the work setting. Dkt. No. 9-7, at 92-94. It does not appear that Dr. Andrews examined Beckwith.
Consultative examiner, David Stang, Psy.D. ("Dr. Stang"), administered to Beckwith the Weschler Adult Intelligence Scale - Fourth Edition, resulting in a full-scale IQ score of 71, a low-borderline range of intelligence. Dkt. No. 9-7, at 208. He concluded that Beckwith's visual abilities were "significantly stronger" than her verbal and auditory abilities. Id. Her perceptual reasoning skills were tested in the upper low average range, and her visual processing speed abilities were in the upper borderline range. Id. By contrast, her verbal comprehension and auditory working memory abilities tested in the mildly deficient range. Id. Dr. Stang concluded that "[i]n terms of evidence of cognitive deterioration, due to a stroke, there is all likelihood that her verbal reasoning, verbal fluency, short- and long-term auditory memory have declined." Dkt. No. 9-7, at 208. Dr. Stang concluded, however, that "the evidence is somewhat ambiguous" because
on none [sic] hand, it is certainly possible that [Beckwith] has always had stronger perceptual reasoning and visual processing abilities, as opposed to verbal and auditory working memory abilities... [h]owever, assuming that she did graduate high school with a B average, and assuming that her expressions of frustration and embarrassment while she took the vocabulary and ...