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Bermudez v. Colvin

United States District Court, W.D. New York

March 18, 2015

STEPHANIE BERMUDEZ, Plaintiff,
v.
CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant.

DECISION & ORDER

MARIAN W. PAYSON, Magistrate Judge.

PRELIMINARY STATEMENT

Plaintiff Stephanie Bermudez ("Bermudez") brings this action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security (the "Commissioner") denying her application for Supplemental Security Income Benefits ("SSI"). Pursuant to 28 U.S.C. § 636(c), the parties have consented to the disposition of this case by a United States magistrate judge. (Docket # 16).

Currently before the Court are the parties' motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket ## 12, 13). For the reasons set forth below, I hereby vacate the decision of the Commissioner and remand this claim for further administrative proceedings consistent with this decision.

BACKGROUND

I. Procedural Background

Bermudez applied for SSI on August 24, 2010, alleging disability beginning on June 1, 1996, due to depression and anxiety. (Tr. 110, 114).[1] On November 22, 2010, the Social Security Administration denied Bermudez's claim for benefits, finding that she was not disabled. (Tr. 47-48). Bermudez requested and was granted a hearing before Administrative Law David S. Pang (the "ALJ"). (Tr. 69-71, 81-85). The ALJ conducted a hearing on December 2, 2011. (Tr. 22-46). Bermudez was represented at the hearing by her attorney Ida M. Comerford, Esq. (Tr. 22, 102). In a decision dated January 13, 2012, the ALJ found that Bermudez was not disabled and was not entitled to benefits. (Tr. 49-60).

On June 18, 2013, the Appeals Council denied Bermudez's request for review of the ALJ's decision. (Tr. 1-6). Bermudez commenced this action on August 13, 2013 seeking review of the Commissioner's decision. (Docket # 1).

II. Relevant Medical Evidence[2]

A. Treatment Records

1. Clinton Family Health Center

Treatment notes indicate that Bermudez began treating with Fatma Akmese ("Akmese"), MD, at the Clinton Family Health Center in July 2009. (Tr. 211-12). According to the notes, on July 20, 2009, Bermudez attended an appointment with Akmese in order to establish care. ( Id. ). Bermudez reported that she was seeking a referral for mental health treatment. ( Id. ). According to Bermudez, she was previously treated by Dr. Seeger at Genesee Mental Health Center ("GMHC"), but she had failed to follow through with treatment. ( Id. ). Bermudez had been prescribed Celexa and Trazodone, but did not take the medication due to its side effects. ( Id. ).

Bermudez reported that she was depressed and frustrated by her living situation. ( Id. ). According to Bermudez, she had moved to the United States from Puerto Rico when she was eighteen years old, and her father and brother were living with her illegally. ( Id. ). Bermudez complained that her father was supposed to assist with the bills, but was not complying with his obligations, resulting in verbal altercations between them. ( Id. ). According to Bermudez, she once had "pulled a knife" on her father, but ultimately put the knife away. ( Id. ). Bermudez reported a history of psychotherapy since she was nine years old, but that she had never attempted suicide and denied suicidal ideation. ( Id. ). Bermudez also reported a prior visit to the emergency department for an anxiety attack. ( Id. ). Akmese prescribed Wellbutrin to address Bermudez's depression and referred her to GMHC for mental health treatment. ( Id. ).

Bermudez returned for an appointment with Akmese on September 22, 2009. (Tr. 218). According to the treatment notes, Bermudez reported that she did not take the Wellbutrin that Akmese had prescribed, but was interested in restarting it to address her anxiety, as well as to assist her efforts at smoking cessation. ( Id. ). Akmese gave her a prescription for Wellbutrin. ( Id. ).

On March 1, 2010, Bermudez returned for an appointment with Akmese, indicating that Wellbutrin had increased her desire to smoke and that she continued to be depressed. ( Id. ). Akmese noted that Bermudez appeared "happy, " but noted that Bermudez reported that she frequently "gets moody" and argues with her partner. ( Id. ). Bermudez reportedly planned to marry the following year and was hoping to get pregnant. ( Id. ). Akmese advised Bermudez against attempts to conceive because a child would likely add stress. ( Id. ). Akmese prescribed Lexapro to address Bermudez's reported depression. ( Id. ).

Treatment notes indicate that Bermudez returned for an appointment on June 2, 2010. (Tr. 222). During the appointment, Bermudez complained of insomnia and fatigue. ( Id. ). Akmese refilled Bermudez's prescriptions for antidepressants. ( Id. ).

On June 27, 2011, Bermudez saw Akmese and complained of ear pain and low back pain. (Tr. 223). According to Bermudez, the pain was located in her lumbar spine and did not radiate. ( Id. ). Bermudez told Akmese that she had been taking her neighbor's Percocet for two weeks and that it alleviated her symptoms. ( Id. ). Bermudez requested a prescription for Percocet. ( Id. ).

Upon examination, Akmese noted no tenderness in the paraspinal and spinal processes of the lumbar spine, normal range of motion of the spine without pain, negative straight leg raise and normal strength, sensation and reflexes bilaterally in Bermudez's lower extremities. ( Id. ). Akmese prescribed Flexeril to address Bermudez's back pain and advised her to cease taking her neighbor's Percocet. ( Id. ).

On July 6, 2011, Bermudez and Akmese discussed completing a Department of Social Services' evaluation for employment. (Tr. 226). Bermudez informed Akmese that she could not work due to her depression and low back pain. ( Id. ). Akmese advised her that any psychological assessment of her work capacity should be provided by her mental health provider, and he opined that he believed that she could work, particularly if she were provided limitations. ( Id. ).

Upon examination, Akmese noted no tenderness in the paraspinal and spinal processes of Bermudez's lower spine, normal range of motion of the spine without pain, negative straight leg raises, and normal strength, sensations and reflexes bilaterally in Bermudez's lower extremities. ( Id. ).

2. GMHC

The record contains treatment notes from GMHC beginning in May 2009. (Tr. 235-37). On May 4, 2009, Bermudez attended a pre-admission screening appointment with a licensed social worker, Amy Walkowicz ("Walkowicz"). ( Id. ). During the meeting, Bermudez reported experiencing depressive symptoms, including low mood, low energy, and body aches in her head, back and chest. ( Id. ). Bermudez reported crying spells, feeling easily frustrated and irritable, and racing thoughts. ( Id. ). She also reported poor sleep, poor appetite, and difficulty focusing and concentrating. ( Id. ). Bermudez reported auditory hallucinations, primarily in the evenings. ( Id. ).

Bermudez reported a troubled childhood in Puerto Rico with her alcoholic mother. ( Id. ). She reported attending therapy in Puerto Rico at the age of eight and a history of behavioral problems in school. ( Id. ). She also reported an emergency department visit in November 2008 due to a possible anxiety attack. ( Id. ). According to Bermudez, she attempted suicide at the age of ten and continues to experience suicidal ideation when she is very upset. ( Id. ). Bermudez reported ongoing pain in her left hip that worsens with depression. ( Id. ).

Walkowicz noted that Bermudez appeared well-groomed, was cooperative, and used spontaneous and clear speech. ( Id. ). According to Walkowicz, Bermudez reported racing thoughts and negative ruminations, and presented a depressed mood and a flat affect. ( Id. ). Walkowicz noted a high level of family conflict and that Bermudez was unemployed. ( Id. ). Walkowicz diagnosed Bermudez with depressive disorder, not otherwise specified, rule out major depressive disorder and panic disorder without agoraphobia, and assessed a Global Assessment of Functioning ("GAF") of 52. ( Id. ). Walkowicz scheduled Bermudez for an appointment for further evaluation. ( Id. ).

On May 8, 2009, Bermudez met with Jessica Tackaberry ("Tackaberry"), a licensed therapist. (Tr. 238-29). During the appointment, Bermudez reported vague thoughts of feeling overwhelmed and stressed. ( Id. ). Tackaberry noted that Bermudez presented with a depressed and anxious mood and that her thought content was characterized by negative ruminations and paranoia. ( Id. ). Tackaberry scheduled Bermudez for an assessment and psychiatric evaluation. ( Id. ).

On May 29, 2009, Bermudez missed her scheduled appointment with Tackaberry due to reported transportation problems. (Tr. 240-45). When Tackaberry attempted to reschedule the appointment for another day, Bermudez became upset and indicated that she was having thoughts of suicide. ( Id. ). Tackaberry scheduled an appointment for later that day, during which Bermudez reported thoughts of suicide and a history of non-suicidal, self-injurious cutting. ( Id. ). Tackaberry discussed a potential referral for partial hospitalization, but transportation presented a barrier to treatment. ( Id. ). Dr. Seeger prescribed Celexa and Trazadone to be dispensed by Bermudez's father. ( Id. ).

During the appointment, Bermudez reported a history of physical and sexual abuse as a child and that she had not been in a relationship for three years. ( Id. ). Bermudez reported that she had completed the seventh grade, had difficulty concentrating at school and had no work history. ( Id. ). Bermudez was admitted for outpatient treatment at GMHC for depression and anxiety. ( Id. ).

Between June 2009 and January 2010, Bermudez continued to attend appointments with Tackaberry. (Tr. 246-64). Treatment notes indicate that Bermudez was not taking her medication as prescribed and repeatedly missed appointments. ( Id. ). Initially, Bermudez reported that she discontinued her medication because of side effects. ( Id. ). She later reported that she stopped taking her medication because she might be pregnant. ( Id. ). Once Bermudez determined that she was not pregnant, she recommenced her medication. ( Id. ).

Tackaberry arranged for transportation to treatment due to Bermudez's inconsistent attendance. ( Id. ). According to the treatment notes, Bermudez had difficulty utilizing public transportation on her own and experienced extreme anxiety or disorientation when lost. ( Id. ). During this time period, Bermudez reported no suicidal ideation, but reported experiencing depressive symptoms, including crying spells, isolation and anger towards her father. ( Id. ). Based upon Bermudez's symptoms, Tackaberry referred her to an Intensive Psychiatric Rehabilitation Program ("IPRT") to assist her to be able to participate in the work force. ( Id. ). Bermudez declined participation in the IPRT. ( Id. ). Bermudez expressed her belief that a GED would be more beneficial, but then changed her mind and requested a referral for vocational training, stating that she wanted to obtain employment. ( Id. ).

On February 15, 2010, Tackaberry discharged Bermudez from treatment. (Tr. 265-66). According to the discharge summary, Bermudez's participation in treatment was inconsistent and she had been warned that failure to attend appointments would result in discharge. ( Id. ). Tackaberry noted that Bermudez had made little progress in addressing her depression and anxiety because of her failure to attend scheduled appointments. ( Id. ). Upon discharge, Tackaberry diagnosed Bermudez with depressive disorder, not otherwise specified, rule out personality disorder, not otherwise specified, and assessed a GAF of 55. ( Id. ).

Approximately three months later, on May 24, 2010, Bermudez attended a screening appointment at GMHC to be evaluated for readmission for mental health treatment. (Tr. 269-70). Bermudez reported that she had stopped attending appointments because she was dissatisfied with treatment. ( Id. ). Bermudez reported continued depressive symptoms, including low mood and energy, inability to sleep, irritability and stress. ( Id. ). Bermudez reported sporadic episodes of poor appetite and auditory hallucinations. ( Id. ). Bermudez reported a history of panic attacks characterized by difficulty breathing, chest pain and feelings of nervousness and being overwhelmed. ( Id. ). Bermudez also reported some back pain. ( Id. ). According to Bermudez, she was no longer taking Lexapro because she did not believe it was effective and it caused her to feel nervous, weak and sleepy. ( Id. ). Bermudez denied previous work history, but stated that she was interested in obtaining employment because she did not receive enough assistance from the Department of Social Services to satisfy her financial needs. ( Id. ).

During the examination, Bermudez's speech was clear and spontaneous, her thoughts were goal-directed and organized, and her mood was stable. ( Id. ). Bermudez was diagnosed with depressive disorder, not otherwise specified and rule out personality disorder based upon previous treatment records. ( Id. ). She was assessed a GAF of 58 and was assigned a licensed therapist, Laura Masceri ("Masceri"), for ongoing treatment. ( Id. ).

Bermudez met with Masceri three times in June 2010. (Tr. 271-77, 280-81). During those appointments, Bermudez reported that she continued to experience depression, low energy and mood, difficulty sleeping, increased anxiety and physical pain. ( Id. ). According to Bermudez, her mental symptoms were interfering with her appetite and sleep. ( Id. ). Bermudez told Masceri that she wanted to earn her GED and obtain employment, but believed that her symptoms would inhibit her ability to obtain those goals. ( Id. ). Bermudez reported that she had difficulty living with her father. ( Id. ). Bermudez reported that she believed therapy helped to improve her symptoms and that she was interested in pursuing treatment. ( Id. ). Masceri admitted Bermudez to treatment, diagnosing her with depressive disorder, not otherwise specified, rule out major depression, rule out ...


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