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Phoenix v. Colvin

United States District Court, S.D. New York

February 4, 2015

TAMMI PHOENIX, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

OPINION AND ORDER

ANDREW J. PECK, Magistrate Judge.

Plaintiff Tammi Phoenix, represented by counsel (Binder & Binder), brings this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security (the "Commissioner") denying her Social Security disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") benefits. (Dkt. No. 1: Compl.) Presently before the Court are the parties' cross-motions for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Dkt. No. 16: Phoenix Motion for Judgment on the Pleadings; Dkt. No. 20: Gov't Motion for Judgment on the Pleadings.) The parties have consented to decision of the case by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 9: Consent Form.)

For the reasons set forth below, the Commissioner's motion (Dkt. No. 20) is GRANTED and Phoenix's motion (Dkt. No. 16) is DENIED.

FACTS

Procedural Background

On April 14, 2011, Phoenix applied for DIB and SSI benefits, alleging disability since February 1, 2008. (Dkt. No. 14: Administrative Record ("R.") 129-39.) On August 25, 2011, the Social Security Administration ("SSA") found that Phoenix was not disabled and denied her applications. (R. 68-83.) Phoenix requested a hearing. (R. 84-85.)

On October 3, 2012, represented by counsel, Phoenix appeared at a hearing before Administrative Law Judge ("ALJ") James Kearns. (R. 48-64.) At the hearing, Phoenix amended her alleged onset date to July 1, 2010. (R. 63.) On October 18, 2012, ALJ Kearns found Phoenix not disabled. (R. 29-40.) ALJ Kearns' decision became the decision of the Commissioner on April 11, 2014 when the Appeals Council denied Phoenix's request for review. (R. 1-5.)

The issue before the Court is whether the Commissioner's decision that Phoenix is not disabled is supported by substantial evidence.

Non-Medical Evidence Before ALJ Kearns

Phoenix, born on October 6, 1973, was thirty-nine years old at the time of ALJ Kearns' decision. (R. 51-51, 129.) Phoenix graduated high school. (R. 53, 177.) Phoenix last worked as a home care provider, and ceased working in 2007 when the patient she cared for was placed in a nursing home. (R. 53, 177.) Phoenix has past relevant work as an administrative coordinator, a receptionist, a groundskeeper, a home attendant, and a general clerical worker. (R. 53-54, 61, 177, 196, 198-201.)

On May 31, 2011, Phoenix submitted an Adult Function Report (R. 183-204) in support of her claim for benefits in which she stated that she could follow written and spoken instructions (R. 190). Phoenix reported no problems getting along with superiors and stated that she had never lost a job because of problems getting along with people. (R. 190.) She reported being able to handle her household finances. (R. 187.) Phoenix, however, also stated that she has problems paying attention and finishing what she starts, because she gets "tired, bored, and loose motivation." (R. 190.)

At her hearing, Phoenix testified that since leaving her position as home attendant, she has been unable to work due to depression, panic attacks and side effects of her medication that leave her with drowsiness, insomnia and memory loss. (R. 54.) Phoenix testified that her depression caused her insomnia and that she sometimes had difficulty staying awake during the day. (R. 56.) Phoenix further testified that sometimes her anxiety and depression limited her interest in doing any activities or leaving her home. (R. 56, 58, 186.) Phoenix received monthly treatment from a social worker and her psychiatrist. (R. 55-56, 186, 188.)

Phoenix testified that she lives with her ten year old son, who she usually takes to school by subway each day. (R. 52, 56-57, 184.) A neighbor brings her son home from school. (R. 57.) On days when Phoenix is unable to get up because of her insomnia, her mother or a friend takes her son to school. (R. 56, 184.) Phoenix also attends appointments at her clinic and goes to the library. (R. 56, 188.) Phoenix testified that she has difficulty being around other people when she is having anxiety problems. (R. 56.) Phoenix cooks for her son except on her "bad" days. (R. 57, 185-86.) Sometimes Phoenix needs help washing dishes and cleaning her house. (R. 58.) Phoenix's mother does the grocery shopping, while her sister does the laundry. (R. 58, 187.) Phoenix finds that her medications are "sometimes" helpful. (R. 59.)

Psychiatric Evidence Before ALJ Kearns

On July 15, 2010, psychiatrist K. Mohamed and a social worker examined Phoenix on behalf of the Federation Employment and Guidance Service ("FEGS"). (R. 247-91.) Phoenix walked alone to the evaluation and stated that she was capable of using public transportation. (R. 258.) Phoenix stated that she could cook, wash dishes, clean and shop for groceries. (R. 258.) Phoenix registered a Personal Health Questionnaire ("PHQ-9 ") score of fifteen, the lower boundary for "[m]oderately severe depression." (R. 232, 258.) Phoenix was not then receiving any mental health treatment. (R. 258, 285.) Phoenix reported that she "[i]s not interested in working." (R. 253.)

Dr. Mohamed found Phoenix well-groomed, cooperative and restless. (R. 282.) Phoenix reported mood swings, anxiety/fearfulness, needing to flee places, a depressed mood, an easy startle response and insomnia. (R. 281-82.) Phoenix disclosed that although she had been depressed for several years, she had stopped seeing a psychiatrist because she felt she was getting worse. (R. 282.) A mental status examination revealed restless activity, a constricted affect, slowed speech and a depressed mood. (R. 282.) Dr. Mohamed found Phoenix to have moderate limitations in her ability to follow work rules, relate to co-workers, accept supervision, adapt to change, deal with the public, adapt to stressful situations and maintain attention. (R. 283.) Dr. Mohamed diagnosed Phoenix with mood disorder, bipolar disorder NOS, and social phobia. (R. 284.) Phoenix had a current global assessment of functioning ("GAF") score of fifty and a GAF of seventy for the past year.[1] (R. 284.) Dr. Mohamed opined that Phoenix was temporarily disabled from work for three months. (R. 284.)

On October 1, 2010, treating psychiatrist Dr. Braham Harneja at Bronx Lebanon Hospital completed a "Treating Physician's Wellness Plan Report" for Phoenix. (R. 343-44.) Phoenix presented with a depressed mood and constricted affect but denied delusions, paranoia or hallucinations. (R. 343.) Dr. Harneja noted that Phoenix's thought process was coherent and her insight, judgment and impulse control were intact. (R. 343.) Dr. Harneja diagnosed Phoenix with recurrent major depressive disorder since September 8, 2010. (R. 343.) Phoenix was compliant with treatment. (R. 343.) Dr. Harneja prescribed Vistaril and Pristiq. (R. 343.) In Dr. Harneja's opinion, Phoenix had not been stabilized, and she would be unable to work for at least twelve months. (R. 344.)

On February 24, 2011, Phoenix attended individual therapy at Bronx Lebanon Hospital, where she was seen by Dr. Harneja and clinical social worker Herman Punch. (R. 329-30, 339, 341-42.) Phoenix reported to Punch that she had some improvement in her mood. (R. 329.) A mental status examination showed Phoenix to have a normal mood and appropriate affect, impaired concentration, normal speech, and moderate memory dysfunction. (R. 329.) Phoenix denied having any depressive symptoms. (R. 329.) Phoenix's thought process was logical, and her judgment, insight and attention were intact. (R. 329.) In his "Treating Physician's Wellness Plan Report, " Dr. Harneja noted that Phoenix was depressed but alert and that her insight, judgment and impulse control were all intact. (R. 341.) Dr. Harneja diagnosed Phoenix with depression and again opined that she was unable to work for at least twelve months. (R. 342.)

On April 18, 2011, Phoenix had a follow-up visit with Dr. Harneja. (R. 326-28.) Phoenix reported feeling better but "down" one to two days a week and overwhelmed with housing problems. (R. 326.) Dr. Harneja's mental status exam found that Phoenix's mood was euthymic, [2] and her affect was calm and constricted. (R. 326.) Phoenix's attention, memory, judgment and insight were intact, and her thought process was logical and directed. (R. 326.) Dr. Harneja refilled Phoenix's medications. (R. 326-27.)

On April 26, 2011, Phoenix returned for therapy with Punch and reported intermittent low mood, crying spells at times and self-imposed social isolation. (R. 324-25.) A mental status examination revealed Phoenix to have a depressed mood, a constricted affect, impaired concentration, forgetfulness and fair insight. (R. 324.) Phoenix reported that she had made unsuccessful efforts to find employment. (R. 324.)

On May 1, 2011, Dr. Harneja completed a "Psychiatric/Psychological Impairment Questionnaire" (R. 292-99) in which he diagnosed Phoenix with mood disorder, not otherwise specified (R. 292). Phoenix's GAF was sixty and had been sixty for the previous year. (R. 292.) Dr. Harneja noted that Phoenix had poor memory, mood disturbance, emotional lability, and difficulty thinking or concentrating. (R. 293-94.)

Dr. Harneja opined that Phoenix was moderately limited in her ability to remember locations and work-like procedures; understand, remember and carry out simple one or two-step instructions; perform activities on a schedule, maintain regular attendance and be punctual with customary tolerance; ask simple questions or request assistance; and travel to unfamiliar places or use public transportation. (R. 294-97.) Dr. Harneja, however, found Phoenix markedly limited in her ability to understand, remember and carry out detailed instructions; sustain ordinary work without supervision; work in coordination with or proximity to others without being distracted by them; complete a normal workweek without interruptions from psychological symptoms and perform at a consistent pace without an unreasonable number and length of rest periods; interact appropriately with the general public; accept instructions and respond appropriately to criticism from supervisors; get along with co-workers or peers without distracting them or exhibiting behavior extremes; maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness; respond appropriately to changes in the work setting; be aware of normal hazards and take appropriate precautions; and set realistic goals or make plans independently. (R. 295-97.) Dr. Harneja noted that Phoenix "report[ed]" experiencing "episodes of deterioration or decompensation" in her workplace because of irritability in accepting instructions and being around co-workers. (R. 297.) Dr. Harneja expected Phoenix's symptoms to persist for as least twelve months. (R. 298.) Dr. Harneja estimated that Phoenix would be absent from work more than three times per month as a result of her impairments or treatment. (R. 299.)

At a May 16, 2011 follow-up visit with Dr. Harneja, Phoenix reported her mood as "up and down, " with intermittent low moods, anxiety alternating with mood swings, irritability and anger. (R. 322-23.) Phoenix's sleep and appetite were fair, her mood was euthymic, her affect was calm, and her thought process was logical and directed. (R. 322.) Phoenix's attention, memory, judgment and impulse control were intact. (R. 322.) Dr. Harneja renewed Phoenix's medications and added Abilify. (R. 323.) On May 27, 2011, Phoenix attended group therapy at Bronx Lebanon Hospital, where she spoke about her financial problems and the stress of owing back rent. (R. 321.)

On June 1, 2011, Phoenix returned for individual therapy with Punch. (R. 333.) Phoenix was making "incremental" progress although "psychosocial stressors, such as housing and financial issues, persist." (R. 333.) Phoenix reported feeling sad because of persistent difficulties paying her rent and expressed the need to find a job, which Punch encouraged. (R. 333.) Phoenix had a depressed mood, a constricted affect, impaired concentration, forgetfulness and fair insight. (R. 333.)

On June 13, 2011, Phoenix saw Dr. Harneja again. (R. 314-15.) Phoenix reported feeling overwhelmed due to her son's behavior in school and financial problems. (R. 314.) Phoenix denied experiencing any side effects from medication and said that Abilify helped with her mood swings and irritability. (R. 314.) Dr. Harneja's mental status exam showed Phoenix to be stressed and unhappy, with an irritable but "ok" mood and a constricted and frustrated affect. (R. 314.) Phoenix's attention, memory, judgment and impulse control all were intact, and her reasoning was normal. (R. 314.) Dr. Harneja increased her dose of Abilify. (R. 315, 332.)

On July 1, 2011, Phoenix returned to group therapy at Bronx Lebanon Hospital. (R. 317.) On July 5, 2011, Phoenix attended individual therapy with Punch, complaining of stress due to housing problems, her son's behavior and her pending mental examinations for SSI. (R. 310-11.) Punch found Phoenix to have an anxious mood, impaired concentration and only fair impulse control. (R. 310.) Punch described Phoenix's memory as forgetful and diagnosed her with mood disorder, not otherwise specified and marijuana abuse, although Phoenix denied active marijuana use. (R. 310.)

On July 14, 2011, Phoenix reported to Dr. Harneja that she was "feeling much better" after the adjustments to her medication, was less depressed, and denied mood swings or irritability. (R. 312-13, 331.) Phoenix's attention and memory were intact, her thought process was logical, and her reasoning was normal. (R. 312.) Her mood was euthymic, her affect was calm, her insight and judgment were intact, and her impulse control was adequate. (R. 312.) Her sleep had improved. (R. 312.)

On July 15, 2011, consultative psychologist Dmitri Bougakov evaluated Phoenix. (R. 305-08.) Phoenix described her symptoms to Dr. Bougakov as frequent difficulty falling asleep and waking, poor appetite, dysphoric moods, crying spells, loss of interest, irritability, low energy, concentration difficulties, diminished sense of pleasure and forgetfulness. (R. 305.) Phoenix stated that she was able to perform all of her chores on a daily basis, but that it was hard for her to get motivated due to low energy and body pains. (R. 307.) Phoenix was able to manage her money and use public transit. (R. 307-08.) Phoenix's thought process was coherent and goal directed, but her mood was dysthymic and her affect dysphoric. (R. 306.) Her motor skills were mildly impaired and her cognitive functioning was average. (R. 306.) Dr. Bougakov diagnosed Phoenix with depressive and anxiety disorder NOS. (R. 307.)

Dr. Bougakov opined that Phoenix could follow and understand simple directions and instructions, perform simple tasks, maintain attention and concentration, maintain a regular schedule and make appropriate decisions, but was somewhat limited in learning new tasks and performing complex tasks and had mild limitations in her ability to deal with others and deal with stress. (R. 307.) Phoenix's overall prognosis was fair, given that her "cognitive symptoms are relatively mild and she does not present with any significant psychiatric symptomatology." (R. 308.) Dr. Bougakov therefore "hoped with appropriate treatment [Phoenix] will be able to return to normal levels of functioning." (R. 308.) Dr. Bougakov concluded that the "[r]esults of the examination appear to be consistent with psychiatric problems, but in itself this does not appear to be significant enough to interfere with [Phoenix's] ability to function on a daily basis." (R. 307.)

Treatment records from Dr. Harneja and Punch from July 2011 through October 2012 are not part of the administrative record. (See Dkt. No. 17: Phoenix Br. at 5 n.10; Dkt. No. 21: Gov't Br. at 10.) Dr. Harneja and Punch, however, did provide two additional opinions about Phoenix.

On December 2, 2011, Dr. Harneja and Punch completed another "Psychiatric/Psychological Impairment Questionnaire." (R. 378-85.) Phoenix's diagnosis remained mood disorder NOS and her GAF score was fifty-five. (R. 378.) Dr. Harneja and Punch noted that Phoenix had difficulty thinking or concentrating, mood disturbance, decreased energy, generalized persistent anxiety and sleep disturbance. (R. 379.)

In their opinion, Phoenix was mildly limited in her ability to understand simple one or two-step instructions and moderately limited in dealing appropriately with the general public, maintaining socially appropriate behavior and in responding appropriately to changes in the workplace. (R. 381-82.) They further opined that Phoenix was moderately limited in her ability to remember locations and work-like procedures, to carry out simple one or two-step instructions, interact with the general public, ask simple questions or request assistance, maintain socially appropriate behavior and adhere basic standards of neatness and cleanliness, respond appropriately to changes in the work setting, be aware of normal hazards and take appropriate precautions, and travel to unfamiliar places or use public transportation. (R. 381-83.) Finally, they opined that Phoenix was markedly limited in her ability to understand, remember and carry out detailed instructions; maintain attention and concentration for extended periods; perform activities with a schedule, maintain regular attendance, and be punctual within customary tolerance; sustain ordinary work without supervision; work in coordination with or proximity to others without being distracted by them; complete a normal workweek without interruptions from psychological symptoms and perform at a consistent pace without an unreasonable number and length of rest periods; accept instructions and respond appropriately to criticism from supervisors; get along with co-workers or peers without distracting them or exhibiting behavior extremes; maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness; and set realistic goals or make plans independently. (R. 381-83.) They noted that Phoenix reported experiencing episodes of decompensation in work or work-like settings. (R. 383.) In particular, Phoenix reported having lost employment in the past due to irritability and difficulty with others in close proximity. (R. 383.) They opined that Phoenix was capable of low stress work, but would be absent two to three times a month. (R. 384-85.)

On October 3, 2012, the day of her hearing, Phoenix submitted a letter from Punch and Dr. Harneja, discussing Phoenix's treatment. (R. 387-88.) The letter stated that Phoenix continued to "regularly" receive treatment from Punch and Dr. Harneja, and largely restated their opinions from the December 2, 2011 questionnaire, including that Phoenix was capable of low stress work. (R. 387-88.)

Vocational Expert Testimony

ALJ Kearns heard testimony form vocational expert Pat Green. (R. 60-63, 122-23.) Green identified Phoenix's past work as either skilled (administrative coordinator) or semi-skilled (home attendant, general clerical). (R. 61.) Green testified that an individual of Phoenix's age, education, and work history who was limited to performing simple and repetitive tasks with no contact with the public and only occasional contact with coworkers and supervisors could not perform Phoenix's past work. (R. 61-62.) She testified that such an individual could work as an addresser, a sorter, and a stuffer, all unskilled sedentary jobs. (R. 62.) Green testified that these jobs existed in substantial numbers in the national and local economy. (R. 62.) Finally, in answer to a question by Phoenix's counsel, Green testified that an individual who was off-task fifteen percent of the day or missed work two to three times per month could not perform any of those jobs. (R. 62-63.)

ALJ Kearns' Decision

On October 12, 2012, ALJ Kearns issued a written decision denying Phoenix's application for benefits. (R. 29-40.) ALJ Kearns followed a five-step analysis, considering Phoenix's testimony and the medical record. (R. 33-40.) First, ALJ Kearns found that Phoenix "has not engaged in substantial gainful activity since July 1, 2010, the amended alleged onset date." (R. 34.) Second, ALJ Kearns found that Phoenix had "the following severe impairments: depression and anxiety." (R. 34.) ALJ Kearns noted "[t]hese impairments are shown to result in vocationally significant limitations and have lasted at a severe' level for a continuous period of more than 12 months." (R. 34.)

At the third step, ALJ Kearns determined that Phoenix "does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1." (R. 34.) According the ALJ Kearns:

No treating or examining physician has mentioned findings that are the same or equivalent in severity to the criteria of any listed impairment, nor does the evidence show signs or findings that are the same or equivalent to those of any listed impairment. I paid particular attention to Listings Sections 12.04 (Affective Disorders) and 12.06 (Anxiety-Related Disorders).
[Phoenix] has the following degree of limitation in the broad areas of functioning set out in the Mental Disorders Listing Sections in 20 CFR, Part 404, Subpart P, Appendix 1: mild restriction in activities of daily living, mild difficulties in maintaining social functioning, moderate difficulties in maintaining concentration, persistence or pace, and no episodes of decompensation, each of extended duration.
The record does show that she has tested as having somewhat impaired concentration; she has reported that she is independent in activities of daily living; there are no debilitating social functioning issues, such as agoraphobia or panic attacks when exposed to crowds in the record; and she has had no suicide attempts, manic episodes, nervous breakdowns or any psychiatric hospitalizations that would constitute a decompensation for an extended period of time.
In this case, the evidence fails to establish the presence of the "paragraph C" criteria because there is no evidence that the claimant experiences repeated episodes of decompensation, a residual disease process barring an increase in mental demands or an ...

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