United States District Court, N.D. New York
VENUS M. LITTLE, Plaintiff,
CAROLYN W. COLVIN, Defendant.
HOWARD D. OLINSKY, ESQ., OLINSKY LAW GROUP, Syracuse, New York for Plaintiff
LAUREN E. MYERS, ESQ., SOCIAL SECURITY ADMINISTRATION, Office of Regional General Counsel Region II New York, New York. for Defendant.
MEMORANDUM-DECISION AND ORDER
MAE A. D'AGOSTINO, District Judge.
Plaintiff commenced this action on January 22, 2014, pursuant to 42 U.S.C. § 405(g) and 1383(c)(3), seeking review of a decision by the Commissioner of Social Security denying Plaintiff's application for Social Security Disability ("SSD") Insurance benefits and Supplemental Security Income ("SSI"). See Dkt. No. 1.
On November 30, 2010, Plaintiff filed an application for SSD and SSI, alleging a disability onset date of August 12, 2008. See Dkt. No. 9, Administrative Record ("T."); see also Dkt. No. 1 at 1. The application was denied on July 5, 2011. T. at 15. Plaintiff then requested a hearing and appeared with her counsel before Administrative Law Judge ("ALJ") John P. Ramos on September 13, 2012. See id. at 34-68. On October 30, 2012, ALJ Ramos issued a decision denying Plaintiff's application. See id. at 18-26. Plaintiff subsequently requested review by the Appeals Council and was denied such review on December 24, 2013, making the ALJ's decision the final decision of the Commissioner of Social Security. See id. at 1-7.
Presently before the Court are Plaintiff's motion to remand for further administrative proceedings, and Defendant's motion for judgment on the pleadings. See Dkt. Nos. 11, 12.
Plaintiff was born on December 1, 1957, and was fifty four years old at the time of the hearings, held on September 13, 2012. T. at 35, 38. Before August 12, 2008, Plaintiff reported work as a head cook. Id. at 39. Plaintiff testified that her job as a cook required her to lift between twenty-to-fifty pounds, and to prepare for the job she received a year of special training. Id. at 42. She further testified that she has "suffered from neck [and shoulder] problems since 2008." Id.
Plaintiff was admitted to the hospital on October 29, 2009, where she presented to the emergency room with "flu-like symptoms. She had a three-day history of fevers, body aches, and prodrome consistent with influenza. She was admitted and started on antibiotics for pneumonia." Id. at 298. After Plaintiff experienced respiratory failure, she "remained in the intensive care unit for over one month." Id. at 312. Upon her recovery, Plaintiff was discharged on December 3, 2009. Id. at 312.
On February 19, 2010, Plaintiff presented to Dennis Noia, P.h.D. ("Dr. Noia") for a consultative psychiatric examination. Id. at 359-62. According to the medical source statement, Plaintiff was "capable of understanding and following simple instructions and directions. She appears to be capable of performing simple and some complex tasks with supervision and independently." Id. at 360-61. The statement also notes that Plaintiff can manage a routine and maintain a schedule, learn new tasks, make appropriate decisions, and "appears to be able to relate to and interact moderately well with others." Id. at 362. However, "[s]he appears to be having some difficulty dealing with stress." Id. Finally, Dr. Noia noted that his examination is consistent with Plaintiff's allegations. Id.
On the same day, Plaintiff presented to Kalyani Ganesh, M.D. ("Dr. Ganesh") for a consultative examination. Id. 363-66. Dr. Ganesh's medical source statement notes that Plaintiff had "[n]o gross limitation noted to sitting, standing or walking. No limitation to the use of upper extremities except mild to moderate limitation to overhead activity." Id. at 366. Dr. Ganesh also noted Plaintiff's reported activities of daily living, stating that "[s]he can cook a couple of times a week, clean once a week, do laundry once a month, shower twice a week, and dress twice a week." Id. at 364. Although Plaintiff reported bilateral shoulder pain brought on by lifting and overhead activity, no limitation to Plaintiff's ability to lift and carry objects was noted, and Dr. Ganesh's report further stated that Plaintiff has full range of motion in her "shoulders, elbows, forearms, and wrists bilaterally." Id. at 363, 365.
After relocating from Syracuse to Tennessee, Plaintiff reported numbness, tingling, and stabbing pain in her shoulders on August 24, 2010. Id. at 414. On September 29, 2010, Plaintiff was diagnosed with cervical radiculopathy and referred to a pain clinic. Id. at 397. On October 8, 2010, Plaintiff underwent an MRI, which showed that she had "[d]egenerative changes most significantly affecting the C5-C6 level." Id. at 391.
On December 3, 2010, Plaintiff was diagnosed with "[m]ajor depressive disorder, recurrent, severe with psychotic features" by Laura Mathews ("Mathews"), a Licensed Clinical Social Worker ("LCSW"). Id. at 422. Another LCSW, Jamie Green ("Green"), also worked with Plaintiff on at least two occasions. Id. at 424-25. A functional capacity assessment completed on December 14, 2010 found moderate limitations on Plaintiff's activities of daily living, interpersonal functioning, concentration, task performance and pace, and ability to adapt to change. Id. at 426-28. The assessment also determined that Plaintiff has a severe and persistent mental illness, and has a Global Assessment Function score of 50. Id. at 428.
On February 19, 2011, Plaintiff presented to Theodore Schuman, M.D. ("Dr. Schuman") for "an all systems evaluation of allegations of rheumatoid arthritis, diabetes mellitus, hepatitis B, depression, [and] hepatitis C." Id. at 455; see also id. at 455-62. In his medical assessment, Dr. Schuman opined that Plaintiff could occasionally "lift and/or carry (including upward pulling) for up to 1/3 of an 8-hour workday a maximum of 10 pounds, " and she could frequently "lift and/or carry from 1/3rd to 2/3rds of an 8-hour workday a maximum of less than 10 pounds." Id. at 461. Dr. Schuman further opined that Plaintiff could "stand and/or walk (with normal breaks) for a total of about 6-hours in an 8-hour workday, " and could sit with no restrictions. Id. at 462.
On March 10, 2011, Frank Kupstas, P.h.D ("Dr. Kupstas") completed a psychiatric review of Plaintiff. See id. at 467-81. Dr. Kupstas found that Plaintiff had mild difficulty in maintaining social functioning, and moderate difficulty in maintaining concentration, persistence, or pace. Id. at 477. He gave great weight to the psychological evaluation performed by Dr. Noia, and did not give any weight to the diagnoses performed by Mathews on December 3, 2010, because a LCSW is a "non-acceptable source." Id. at 479.
On March 31, 2011, Marvin H. Cohn, M.D. ("Dr. Cohn") determined Plaintiff's residual functional capacity ("RFC") based on the existing medical records. See id. at 481-90. He found that Plaintiff could occasionally lift or carry twenty pounds, could frequently lift or carry ten pounds, could stand or walk with normal breaks for about six hours in an eight-hour workday, and could sit with normal breaks for about six hours in an eight-hour workday. Id. at 482. Further, Dr. Cohn found that Plaintiff's "statements about her symptoms and functional limitations are partially credible [because] the severity alleged [is] not completely consistent with the objective findings from the evidence in file." Id. at 489. Consequently, Dr. Cohn opined that restrictions in the 2011 consultative examination by Dr. Schuman are not consistent with Dr. Schuman's own findings during that examination, specifically that Plaintiff "has a [history] of arthritic pain, but [Plaintiff] has full [range of motion] in all major weight bearing joints and is slightly limited with the usages of her hands." Id. at 487.
On June 29, 2011, Saul Juliao, M.D. ("Dr. Juliao") completed a second RFC assessment. See id. at 509-17. Similar to Dr. Cohn, Dr. Juliao found that Plaintiff could occasionally lift or carry twenty pounds, could frequently lift or carry ten pounds, could stand or walk with normal breaks for about six hours in an eight-hour workday, and could sit with normal breaks for about six hours in an eight-hour workday. Id. at 510. Dr. Juliao, like Dr. Cohn, opined that Plaintiff's "statements about her symptoms and functional limitations are partially credible [because] the severity alleged [is] not completely consistent with the objective findings from the evidence in file." Id. at 514. Finally, Dr. Juliao commented on Dr. Schuman's examination, stating that Dr. Schuman's "restrictions are not consistent with his own findings. [Plaintiff] has a history of arthritic pain, but [Plaintiff] has [f]ull [range of motion] in all major weight bearing joints." Id. at 515.
On March 21, 2012, Plaintiff presented for intake at Syracuse Community Health Center. See id. at 554-55. She was diagnosed with Anxiety and Depressive disorders, and Nicole DeFurio ("DeFurio"), a LCSW, stated that Plaintiff had a flat mood, was despondent, and had a tearful affect. Id. at 555. However, DeFurio also found that Plaintiff's "[e]ye contact and physical appearance were good. Plaintiff's insight and judgment were appropriate." Id.
A. Legal Standards
1. Five-step analysis
For purposes of SSI, a person is disabled when she is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 1382(c)(3)(A). There is a five-step analysis for evaluating disability claims:
"First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience; the [Commissioner] presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe ...