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Cole v. Colvin

United States District Court, W.D. New York

March 25, 2015

TAMARA COLE, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration of the United States, Defendant.


FRANK P. GERACI, Jr., Chief District Judge.


Plaintiff Tamara Cole ("Plaintiff") brings this action pursuant to Title II and Title XVI of the Social Security Act ("SSA"), seeking review of the final decision of the Commissioner of Social Security ("Commissioner"), which denied her application for disability and Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). ECF No. 1. The Court has jurisdiction over this matter under 42 U.S.C. ยงยง 405(g) and 1383(c)(3).

Before the Court, currently, are the Motions for Judgment on the Pleadings filed by both parties pursuant to Federal Rules of Civil Procedure 12(c). ECF Nos. 15, 16. For the reasons set forth herein below, I find that the final decision of the Commissioner is supported by substantial evidence within the record[1] and accords with applicable legal standards. Therefore, this Court grants the Commissioner's Motion for Judgment on the Pleadings, denies Plaintiff's Motion for Judgment on the Pleadings, and orders that the Complaint be dismissed.


A. Procedural History

Plaintiff protectively applied for a period of disability and DIB on September 27, 2010, and, on that same date, protectively applied for SSI, alleging in both applications disability beginning July 15, 2009. R. 167-78. Her applications for disability and DIB and SSI benefits were denied on March 4, 2011. R. 25. On May 22, 2012, Plaintiff, represented by her attorney Stephen A. Segar, Esq., appeared and testified at a video administrative hearing held before Administrative Law Judge ("ALJ") David J. Begley. R. 43-79. Vocational Expert Martin A. Kranit, ("VE") appeared by telephone and testified, as well. Id. At the conclusion of the hearing, the ALJ held the record open for submission of additional evidence. R. 25, 78. Such evidence was received and entered into evidence. R. 25, 182-83, 368-69. Thereafter, by letter dated June 12, 2012, Plaintiff's representative, with her permission, amended the onset date to August 31, 2011, based on Plaintiff's earnings records for the years 2010 and 2011. R. 249. The ALJ on June 15, 2012, issued an unfavorable decision finding that Plaintiff was not disabled. R. 34. The ALJ's decision became the final decision of the Commissioner on March 18, 2013 when the Appeals Council declined to assume jurisdiction. R. 2-5. Thereafter, Plaintiff timely commenced this civil action in the United States District Court for the Western District of New York, appealing the Commissioner's decision. ECF No. 1.

B. Factual Background

Born in 1987, Plaintiff was 24 years old at the time of the administrative hearing, and had graduated high school and completed two semesters of college, studying criminal justice and nursing. R. 49, 58. She initially testified that she last worked on July 15, 2009; her employment history included work in telephone sales; as a cashier at a fast-food restaurant, from which she claimed that she was fired in 2010 due to anger problems due to depression and left hand pain; and self-employment in 2011 assisting a friend with a hair dressing business, but stopped due to hand pain. R. 50-54. Plaintiff testified that she could not work because of depression and left hand pain. R. 52, 73. The pain in her left hand caused her to get depressed. R. 51, 52.

Plaintiff lived in a 17th floor apartment with her nine-year-old son, custody of whom she had lost, but hoped to regain legal custody soon. R 56-57. She stated that her driver's license had been taken away in 2009 due to a DWI in 2008, and that she took the bus to the hearing. R. 57-58, 69.

She stated that due to neglect as a child, she experienced post-traumatic stress and recently started taking Seroquel and Abilify for her mental health issues and was taking them as prescribed. R. 52, 60, 66. Plaintiff testified that she was hospitalized in February 2012 for two weeks because she ran out of her medication; she got depressed and called an ambulance to come to get her. R. 66. She was seeing a therapist at Unity Health's Evelyn Brandon Health Center. R. 59-60. The medications helped her to function enough to take care of her son, but did not make her happy. R. 65-66. She stated that she sometimes hallucinated or heard voices as side effects of the medication. R. 67. She had taken Advil in the past, but now took prescribed medication for her left hand and, for the last two years, sometimes wore a brace. R. 60-61. When she was young she cut her hand when it went through a window. R. 61. Lifting anything heavier than five to ten pounds or doing housework caused her left hand to hurt; she could lift more with her right hand, but was depressed about her left hand. R. 61, 63.

Plaintiff testified that on a typical day, she awoke at 7:00 a.m.; put her son on the bus; tried to clean up as much as possible; tried to make something to eat using her right hand; washed up; and maybe read a book or went for a walk. R. 64. She was able to dress and bathe herself using her right hand. R. 65. She, primarily, did the household chores, shopped for groceries, washed the dishes, and did laundry, although she sometimes dropped it. R. 64, 65. She stated that she did not watch TV, do puzzles or games because of depression and anxiety; sometimes woke up in the middle of the night with nightmares about her childhood. R. 65. Plaintiff went to church once a week, but planned to go once or twice a month; played kick ball with her son and attended his school events. R. 68-69. They read together. R. 68. Regarding alcohol, Plaintiff testified that she had not drunk since 2009, except for an occasional wine cooler, and never used illegal drugs. R. 69-70.

On examination by her attorney, Plaintiff testified that she sometimes experienced numbness in her left hand when she was grocery shopping or cleaning, dependent upon her weekly schedule; the numbness lasted for hours sometimes and caused her to drop things; her left hand felt "useless." R. 70-71. She gets really nervous around people, she might get angry and break down and cry. R. 70. On medication, she was able to be more stable; medication stabilized her mood and helped her. R. 72.

The VE, who appeared at the ALJ's request for the purpose of determining the extent to which Plaintiff's additional limitations impeded the unskilled light occupational base, testified that an assumed individual with Plaintiff's age, education, work experience, and able to do a full range of light work, limited to: only occasional pushing and pulling with dominant left hand, occasional handling and fingering with the dominant left hand, work requiring only simple, routine, repetitive tasks, occasional interaction with co-workers, as well as the general public, could perform work in light, unskilled jobs. R. 74-76. He named three such jobs, providing 25 percent of the total numbers to accommodate work that could be done by a person with a nondominant right hand: housekeeper with 4, 500 jobs in New York State and over 100, 000 jobs nationally; sorter with 4, 500 jobs in New York State and 50, 000 jobs nationally; and mail clerk with 2, 500 jobs in New York State and 30, 000 jobs nationally. R. 75-76. The VE also testified that if such individual was off task 20 percent of the day, he or she would not be able to maintain full time competitive employment. R. 76. Upon questioning by Plaintiff's attorney, the VE stated that there would be no work for such person if he or she also missed three to four days a month. R. 76-77.

C. Relevant Medical Evidence

When Plaintiff was examined on February 9, 2010 by MSPT Sancilio at Southview Physical Therapy and Sports Rehabilitation, P.C. ("Southview"), she reported that she was experiencing pain, numbness, and decreased functioning of her left wrist and hand due to an injury sustained around 1997. R. 251. On objective examination, palpation was positive for tenderness; passive range of motion in the wrist and thumb were within normal limits, but strengthening of her left shoulder and hand was indicated. Id. The assessment was loss of strength, decreased function, thenar atrophy and pain limiting function of the left hand. Id. The record evidence demonstrates that Plaintiff received her routine primary care through Westside Health Services' Brown Square Center located at 322 Lake Avenue, Rochester, New York ("Westside") where, according to progress notes, she was treated for medical and mental health concerns in 2010, 2011, and 2012. R. 257-272, 351-67. On September 1, 2010, Plaintiff went in to discuss her mental health and was diagnosed with PTSD and agoraphobia without panic based on reporting a history of pervasive emotional stress/anxiety; rape in 2008 by an unknown male who she fought - felt her anxiety increased since then; a difficult childhood due to neglect; nervous around people; symptoms of shaking, inability to look at others' eyes and mostly staying home which interfered with work; success in an office job, but left when she could not participate in trainings and meetings; racing thoughts calmed by cleaning; difficulty sleeping; and recurring thoughts and nightmares about rape. R. 267-268. She had not sought treatment for mental health, but was motivated for treatment now "to go back to school, have a job, [and] be the best mom for her son." R. 268. She wished that she could disappear; but unlike eight years ago, presently, she had no suicidal thoughts or plans. She was started on Sertraline. R. 267-68.

On September 2, 2010, Plaintiff was seen at Westside for medical concerns and depression, reporting that on Zoloft she was cleaning her house a great deal "to self-sooth[e]"; had a history of suicidal ideation, but denied any present suicidal ideation; and was hearing music and knocks at the door that were not there. R. 264. Dr. Scott R. Dent did not see present signs of mania, but stated that Plaintiff should be watched closely for this; he assessed Plaintiff with major depression, a single episode, unspecified; continued her on Sertraline; and signed a form to keep her out of work for three months. R. 264-265.

At the Westside visit on September 8, 2010, Plaintiff reported that she stopped taking Sertraline which increased her depression; upon examination, she did not appear depressed and her affect was normal. R. 262. She was assessed with atypical depressive disorder and started on Lamotrigine; she agreed to counseling. Id.

At a visit to Westside on December 6, 2010, Plaintiff reported that she had stopped taking Sertraline due to side effects of hearing music and sleeplessness; now, she felt stable and had no concerns with sleep, sadness, or tearfulness, and had no episodes of increased energy or agitation. R. 257. She was assessed with an atypical depressive disorder and referred to the Evelyn Brandon Health Center for depression with episodes of agitation and audio hallucinations. R. 258.

On February 14, 2011, during Plaintiff's Westside visit, she sought a referral to a neurologist for the muscle loss in her hand and that it would help establish her case for SSI; she also had stopped taking Sertraline stating, it made her "feel worse." PA Terri Ragin referred Plaintiff to the Strong Neurology Department. R. 357-58. A May 17, 2011 nerve conduction test of the left wrist conducted at the University of Rochester Medical Center showed evidence of median neuropathy with complete denervation of the left abducto-pollici brevis, but no evidence of left ulnar neuropathy. R. 368-369. Dr. Anne Corbett saw Plaintiff at Westside on February 9, 2012 for a medication review, noting that Plaintiff had a "right" hand injury in 1997. R. 351.

Plaintiff was also seen as an outpatient for mental health concerns at Unity Health Systems' Evelyn Brandon Health Center ("Unity"), with an initial mental health evaluation on December 28, 2010. R. 273-78. She was diagnosed with PTSD, major depressive disorder, recurrent, severe with psychotic features, anxiety disorder not otherwise specified, and possible social phobia. R. 273. Plaintiff reported that she had stopped taking the psychotropic medication prescribed by her primary care provider - it caused her to hear voices and music in her head; she could not sleep, cried frequently and saw white lights and white shadows. R. 273-274. She was logical and coherent, alert, oriented times three, and had good insight, but her mood was anxious and depressed and her thought process was remarkable for helplessness, hopelessness, and worthlessness. R. 276.

At the Commissioner's request, Dr. Kavitha Finnity, a psychologist, conducted a consultative psychiatric evaluation of Plaintiff on February 14, 2011, and diagnosed mood disorder with psychotic features and PTSD, opining in her medical source statement that Plaintiff could follow and understand simple directions, perform simple tasks, maintain attention and concentration, maintain a regular schedule, learn new tasks, perform complex tasks with supervision, and make appropriate decisions. R. 279-81. She noted that Plaintiff was having difficulty dealing with others and dealing with stress. R. 281. Dr. Finnity based her findings on Plaintiff's reports and her observations of Plaintiff during the mental status examination. Plaintiff reported the following: no psychiatric hospitalizations; difficulty sleeping and loss of appetite; depressive symptoms including dysphoric mood, crying, hopelessness, and irritability; loss of interest and energy, and social withdrawal; excessive anxiety with nightmares and flashbacks about five times per week; increased energy and goal-directed activity; and auditory hallucinations. R. 279. ...

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