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Torres v. Colvin

United States District Court, S.D. New York

March 17, 2015

CAROLYN COLVIN Acting Commissioner of Social Security, Defendant.


GABRIEL W. GORENSTEIN, Magistrate Judge.

Plaintiff Guillermo Torres brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c) for judicial review of the final decision of the Commissioner of Social Security denying his claims for Social Security Disability ("SSD") and Supplemental Security Income ("SSI") benefits under the Social Security Act. The parties have consented to disposition of this case by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). Both Torres and Acting Commissioner of Social Security Carolyn Colvin (the "Commissioner") have moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). For the reasons stated below, Torres's motion is denied and the Commissioner's motion is granted.


A. Torres's Claim for Benefits and Procedural History

Torres applied for SSD and SSI benefits on May 19, 2011. See Administrative Record, filed Mar. 25, 2014 (Docket # 9) ("R."), at 124-41. He claimed that his ability to work was limited by "[s]evere depression." R. 163. He alleged that his disability began on August 17, 2010, R. 124, 135, when he was 54 years old, see id. Torres has a high school education and attended one year of college. R. 58. He worked as a production manager at a public access television station for 15 years, until August 17, 2010, when he was terminated from his job. R. 58-60. That date is also the alleged onset date of his disability. R. 159.

On July 18, 2011, the Social Security Administration denied Torres's applications for SSD and SSI. R. 70-77. Torres then requested a hearing before an Administrative Law Judge ("ALJ"), R. 78-80, which was held on May 18, 2012, R. 54-66. On May 25, 2012, the ALJ issued a decision finding that Torres was not disabled. R. 36-49. The Appeals Council denied Torres's request for review on July 17, 2013. R. 5-10. On November 18, 2013, Torres filed this suit under 42 U.S.C. § 405(g). See Complaint, filed Nov. 18, 2013 (Docket # 1). Both parties have filed motions for judgment on the pleadings.[1]

B. Evidence Before the ALJ

1. Riverdale Mental Health Center

Torres began receiving treatment at the Riverdale Mental Health Center on December 20, 2010. R. 273. He exhibited a depressed mood upon his intake. Id . He had lost his job due to an allegation of sexual impropriety and was facing bankruptcy and eviction. R. 273-74.

On January 3, 2011, Torres returned to Riverdale Mental Health Center for a "comprehensive psychosocial evaluation, " conducted by Paul Heron, a licensed social worker. R. 266-72. Torres stated that he smoked marijuana daily during August 2010 after he was fired from his job but that he was currently abstaining from marijuana use. R. 266. He also acknowledged using heroin, cocaine, and crack in the 1980's and 1990's, but stated that he had not used those drugs in several years. See id. The evaluation noted that Torres "is somewhat socially isolated" and that his brother had been diagnosed with schizophrenia. R. 267. Torres was well groomed, well dressed, and "seems to be able to make and keep appointments etc." Id . His overall medical health was good. R. 270. Mr. Heron diagnosed Torres with cannabis abuse in remission and dysthymia on Axis I, and he identified the severe stressors of unemployment, bankruptcy, and losing home on Axis IV. R. 272.[2] He gave Torres a GAF score of 55. Id.[3]

After that initial evaluation and through December 15, 2011, Torres had regular individual counseling sessions with Mr. Heron. See R. 275, 277-78, 285-86, 299-302, 307-08, 326-27. At a session on January 31, 2011, Torres was "angry but not depressed" and declined medication. R. 307. On February 16, 2011, he was in a very depressed mood and felt that he would "never be able to get over this." Id . On February 23, 2011, Torres was in a "very depressed mood" and appeared unshaven and unkempt. R. 302. In a "rapid follow up" on February 25, 2011, Torres appeared clean and shaven but was very depressed and somewhat tearful. Id . On February 28, 2011, Mr. Heron noted that although Torres presented with "thoughts of harming himself, " he was not suicidal but rather felt "that the hospital would help him get benefits and housing without having to wait on lines of 200 people.'" R. 302.

Torres began treatment with psychiatrist Matthew Gudis, M.D. of the Riverdale Mental Health Center, on March 1, 2011. See R. 262, 265; see also Pl. Mem. at 2. At his first visit with Dr. Gudis, Torres complained of depression since August 2010. R. 262. He described symptoms of dysphoria, diminished energy and concentration, increased difficulty performing activities of everyday living, decreased appetite without weight loss, disturbed sleep, feelings of panic, preoccupation with past events, and some suicidal thoughts without intent or plan. Id . He stated that he had moved in with his elderly father and had attempted to find work but did not know how to explain why he left his previous job. Id . Torres reported that he had some supportive friendships. Id . On medical status examination, Dr. Gudis found that Torres was well groomed, well dressed, well nourished, and cooperative. R. 263. He spoke with a normal rate and tone and made good eye contact. Id . His psychomotor activity was normal, his affect was full range and appropriate, and he had no perceptual disorder or abnormalities of thought process. R. 264. His judgment and insight were good, with no homicidal ideation. Id . His orientation and concentration were normal, his memory and impulse control intact, and his intelligence average. R. 265. His mood was depressed and anxious, and he exhibited some suicidal ideation, without active intent or plan. R. 264. Dr. Gudis diagnosed Torres with major depression and cannabis abuse in remission on Axis I, loss of job and apartment and financial difficulty on Axis IV, and a GAF score of 52. R. 265.[4] He recommended continued therapy and prescribed Lexapro. R. 265, 306.

At his next visit with Dr. Gudis, on March 31, 2011, Torres reported that the Lexapro had not been helpful, and he complained of gastrointestinal upset, fatigue, and being in a "fog." R. 304. Dr. Gudis reported that Torres's mental status was similar to his previous visit. Id . Dr. Gudis changed Torres's prescription to Cymbalta. R. 303, 305. Torres reported to Mr. Heron on April 11, 2011 that he was in better spirits "now that I'm not on those meds." R. 301.

At a session with Mr. Heron on April 25, 2011, Torres was "in [a] more positive mood" and had helped a friend in a video lab. R. 300. Although this was without pay, Torres reported a "sense of accomplishment" and talked about "doing the things that I can do." Id . On May 16, 2011, Torres was again in a "dispirited condition, " but on June 2, 2011, his mood was "much improved." R. 299.

At his next appointment with Dr. Gudis on June 7, 2011, Torres reported that he had not taken the Cymbalta, but that he was experiencing less intense symptoms and had been exercising regularly and was engaged in his unemployment case. R. 297. Dr. Gudis prescribed Zoloft. R. 296, 298. On June 9, 2011, Torres appeared in "somewhat positive spirits" to Mr. Heron, after having spent a weekend with friends. R. 286. Torres reported an improved mood on June 16, 2011, and felt "more energized" on June 23, 2011, which he attributed to the Zoloft. Id . On June 30, 2011, Torres reported to Mr. Heron that he had "some misgivings" about a planned trip to Texas to visit his girlfriend, and on July 7, 2011, he said that he did not go to Texas because he wanted to be near his father. R. 285. The next month, on July 28, 2011, Torres appeared in an "increasingly depressed mood" as his father's condition continued to deteriorate, but on August 4, 2011, he was "somewhat encouraged" by news that people at his former job had been asking questions about him. R. 278. At an August 25, 2011 session with Mr. Heron, Torres was very depressed, and he again reported that his father's health had deteriorated. R. 277.

Torres met with Dr. Gudis again on September 8, 2011, when he reported that he had stopped taking Zoloft because he was feeling "edgy" and having gastrointestinal side effects. R. 279. Despite this, he reported feeling "a bit better, " though his underlying problems had not changed and he was still experiencing symptoms including dysphoric mood, increased anxiety, unsound sleep, feelings of hopelessness, and anhedonia. Id . Dr. Gudis changed Torres's prescription from Zoloft to Wellbutrin. R. 276, 279-80.

On September 8, 2011, Torres reported to Mr. Heron that he was in a "somewhat hopeless mood." R. 277. On September 29, 2011, Torres was "extremely depressed" and feared that his father was dying. R. 275, 327. At his next meeting with Dr. Gudis, on October 13, 2011, Torres reported that his father had died the week before and that he was "sad about the loss." R. 345, 352. He was sleeping five to six hours per night, and the gastrointestinal side effects he had been experiencing from the Wellbutrin were improving. Id . He seemed "sad, " but his depressive symptoms were less intense than a month prior. Id . Dr. Gudis continued him on Wellbutrin. R. 346. On November 17, 2011, Torres met again with Dr. Gudis and reported that he had "been struggling since [his] father's death." R. 338. Dr. Gudis increased Torres's dose of Wellbutrin. R. 339.

On December 1, 2011, Mr. Heron noted that Torres was in "better spirits, " though he seemed sad about his father's death. R. 326. A week later, Torres was in an "angry mood." Id . On December 13, 2011, Torres reported to Dr. Gudis that he was experiencing depressive symptoms: feelings of hopelessness and sleeping only four hours per night. R. 330. Dr. Gudis again increased his Wellbutrin dose. R. 331. On December 27, 2011, Dr. Gudis noted that Torres had been taking this new dose for approximately one week and that it had helped him "to fend off depressive thoughts and to be somewhat more energetic." R. 324. Dr. Gudis continued him on Wellbutrin. R. 325. Torres met again with Dr. Gudis on January 17, 2012, reporting that his anxiety had decreased, he had not been experiencing severe depressive symptoms, and his energy level was variable. R. 322. He was "thinking about the possibility of part time or volunteer work." Id . The only reported side effect from the Wellbutrin was mild dry mouth, and Dr. Gudis recommended that Torres continue with the medication. R. 323.

On January 30, 2012, Dr. Gudis completed a Psychiatric/Psychological Impairment Questionnaire. R. 312-19. He diagnosed Torres with major depression on Axis I, loss of job and loss of apartment on Axis IV, and a current GAF score of 52. R. 312. Torres's lowest GAF score in the previous year was 45. Id.[5] Dr. Gudis's clinical findings, indicated on a checklist, included: appetite disturbance with weight change, sleep disturbance, mood disturbance, emotional lability, anhedonia or pervasive loss of interest, feelings of guilt/worthlessness, difficulty thinking or concentrating, suicidal ideation or attempts, social withdrawal or isolation, decreased energy, and generalized persistent anxiety. R. 313. Torres's primary symptoms were depressed mood, decreased energy, impaired sleep, and suicidal ideation. R. 314. As to Torres's functional limitations, Dr. Gudis indicated that there was no evidence of limitation of the ability to remember locations and work-like procedures, understand and remember one- or two-step instructions, carry out simple one- or two-step instructions, sustain an ordinary routine without supervision, make simple work-related decisions, interact appropriately with the general public, ask simple questions or request assistance, maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness, and be aware of normal hazards and take appropriate precautions. R. 315-17. Torres was mildly limited (significantly affected in his ability to perform the activity) in his ability to understand and remember detailed instructions, work in coordination with or proximity to others without being distracted by them, travel to unfamiliar places or use public transportation, and set realistic goals or make plans independently. R. 314-17. He was moderately limited (significantly affected but not totally precluded from performing the activity) in his ability to carry out detailed instructions, maintain attention and concentration for extended periods, accept instructions and respond appropriately to criticism from supervisors, get along with co-workers or peers without distracting them or exhibiting behavioral extremes, and respond appropriately to changes in a work setting. Id . Torres was mildly to markedly limited in his ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerance. R. 315. He was markedly limited (effectively precluded from performing the activity in a meaningful manner) in his ability to complete a normal workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unacceptable number and length of rest periods. R. 314, 316. Dr. Gudis indicated that Torres's symptoms and functional limitations were reasonably consistent with the impairments described in the evaluation. R. 314. Dr. Gudis opined that Torres's impairments were ongoing, creating an expectation that they would last at least 12 months. R. 318. He also noted that Torres was not a malingerer and that Torres's impairments were likely to produce "good days" and "bad days." Id . He could not estimate how often Torres would be likely to be absent from work as a result of his impairments. R. 319. Dr. Gudis opined that Torres could tolerate "low" work stress. R. 318. On April 10, 2012, Dr. Gudis wrote a narrative report containing this same information, which he stated was "consistent with" the January 30, 2012 Questionnaire. R. 356-57.

In addition to his individual sessions with Mr. Heron and Dr. Gudis, Torres participated in group counseling at Riverdale Mental Health Center from July 2011 through November 2011. R. 281-84, 287-95, 332-37, 340-44, 347-51. He often participated verbally in the group's discussions, and he was consistently attentive even when he was not actively participating. See id.

2. Montefiore Marble Hill Family Practice

Torres received medical care at Montefiore Marble Hill Family Practice. See R. 229-59, 361-91, 394-432. During an appointment on June 30, 2011 with Dr. Angel Gonzalez, Torres stated that he walked two and a half miles every other day. R. 231-32. At a follow-up appointment on August 1, 2011, Torres reported a history of depression since losing his job, for which he was receiving treatment at Riverdale Mental Health Center. R. 252. Notes from this visit indicate that Torres did not have "severe depression" and that his condition had improved with psychotherapy. Id . They describe Torres as "alert and cooperative, [with] normal mood and affect, normal attention span and concentration." R. 253. Dr. Gonzalez assessed Torres as having "adjustment disorder with depressed mood" and recommended that he continue psychotherapy at Riverdale Mental Health Center. Id.

On May 7, 2012, Christine Gallagher, a licensed marriage and family therapist, wrote a narrative report, describing the services she provided to Torres. R. 434. Torres's father was a patient of the Visiting Nurse of N.Y./Bronx Hospice team, and after his death, Ms. Gallagher had counseling sessions with Torres on October 31, 2011, November 10, 2011, November 21, 2011, December 22, 2011, and January 26, 2012. Id . Those counseling sessions included "bereavement support" and offered "coping skills for ongoing development." Id.

4. Consultative Examination Report

Herb Meadow, M.D., conducted a psychiatric evaluation of Torres on July 1, 2011. R. 201-04. Torres traveled to the evaluation alone by public transit. R. 201. A report of the evaluation included a psychiatric history of hospitalizations for depression between 1983 and 2004. Id . Torres was in psychiatric treatment as a child for reasons he did not recall, and he had been "in and out" of treatment since then. Id . Torres was currently seeing Dr. Gudis at Riverdale Mental Health Center once per month and also attending therapy sessions there on a weekly basis. Id . The report noted that he was taking Zoloft at that time. Id.

Torres reported that he had last worked in August 2010, when he was fired because he was "falsely accused of sexually molesting a 13-year-old girl." Id . Dr. Meadow's report stated that Torres has difficulty falling asleep, poor appetite, and a history of recurrent depression. Id . Torres described his current symptoms as including dysphoric moods, crying spells, loss of usual interest, irritability, low energy, diminished self-esteem, difficulty concentrating, diminished sense of pleasure, and being socially withdrawn. Id . Torres had suicidal thoughts in the past, but he denied any immediate plans to harm himself. Id . He had also experienced flashbacks and nightmares from being physically and sexually abused as a child. R. 201-02. Though Torres had a history of panic attacks, he had not had one in the recent past. R. 202. He denied any manic symptoms, thought disorder, and cognitive defects. Id . Torres had a history of polysubstance abuse - including heroin, cocaine, PCP, LSD, and marijuana - but had been substance-free since 1986. Id.

Dr. Meadow's mental status examination showed that Torres's "demeanor was cooperative" and his "manner of relating was adequate." Id . Torres's speech was "fluent and clear, " and his "[e]xpressive and receptive language was adequate." Id . His thought processes were coherent and goal directed, and there was no evidence of hallucinations, delusions, or paranoia. Id . Torres's affect was appropriate in speech and thought content, and his mood was depressed. Id . His attention and concentration were intact for counting, calculations, and serial 3s from 20. Id . His recent and remote memory skills were intact - he could repeat three out of three objects immediately and after five minutes, and he could repeat four numbers forward and three backward. R. 203. His cognitive functioning was average, with his general fund of information being somewhat limited, and his insight and judgment were both fair. Id.

As to Torres's "mode of living, " Dr. Meadow's report stated that Torres takes care of his personal hygiene and does some household chores. Id . He socializes primarily with his immediate family and spends time watching television and going for walks. Id . The report further stated that Torres "would have some difficulty dealing with excessive stress and relating adequate [sic] with others. Otherwise, he will be able to handle all other tasks necessary for vocational functioning." Id.

Dr. Meadow diagnosed Torres with major depressive disorder, severe, without psychotic features; and polysubstance abuse/dependence in remission. Id . He recommended that Torres continue with psychiatric treatment and expressed a prognosis of "[f]air to guarded." R. 204.

C. Hearings Before the ALJ

A hearing before ALJ Mark Hecht was held on May 18, 2012. R. 54-66. Torres appeared in person, accompanied by his attorney. R. 56. Torres testified that he traveled to the hearing by train with a friend, because he is unable to travel alone. R. 58. He has difficulty traveling alone because he gets confused, loses his way, and his "brain doesn't process things right." Id.

Torres has a high school diploma and attended one year of college. Id . He worked as a production manager in the communications field for 15 years. R. 58-60 His duties were to "take down reservations, make sure the equipment was working properly, " and report any malfunctioning equipment to his superiors. R. 59. This work required Torres to sit for about half the time and stand for about half the time, and he had no physical difficulty doing his job at the time he left. R. 59, 61. Torres left his job on August 17, 2010. R. 60. When questioned by the ALJ, Torres explained that he was discharged because he was "accused of touching a 14year-old child." Id . Torres had never been accused of any misconduct previously. R. 61. Torres tried to find other work after he was discharged, applying for "a couple things, " but he received no responses. Id . When the ALJ asked how Torres had supported himself since he stopped working, Torres replied that he had applied for welfare, was living with family, and was "living on $200 in food ...

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