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Dyer v. Colvin

United States District Court, W.D. New York

March 30, 2015

ASHLEY A. DYER, Plaintiff,
v.
CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant.

DECISION & ORDER

MARIAN W. PAYSON, Magistrate Judge.

PRELIMINARY STATEMENT

Plaintiff Ashley A. Dyer ("Dyer") 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 applications for Supplemental Security Income and Disability Insurance Benefits ("SSI/DIB"). 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 # 12).

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 ## 9, 10). 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

Dyer protectively filed for SSI/DIB on March 3, 2010, alleging disability beginning on December 4, 2009, as a result of traumatic brain injury, kidney problems and high blood pressure. (Tr. 144, 149).[1] On May 15, 2010, the Social Security Administration denied both of Dyer's claims for benefits, finding that she was not disabled. (Tr. 67-68). Dyer requested and was granted a hearing before Administrative Law Judge F. Patrick Flanagan (the "ALJ"). (Tr. 89-90, 99-103). The ALJ conducted a hearing on July 20, 2011. (Tr. 34-66). Dyer was represented at the hearing by her attorney, Robert Noble, Esq. (Tr. 34, 120). In a decision dated October 21, 2011, the ALJ found that Dyer was not disabled and was not entitled to benefits. (Tr. 18-27).

On April 19, 2013, the Appeals Council denied Dyer's request for review of the ALJ's decision. (Tr. 1-4). Dyer commenced this action on June 18, 2013, seeking review of the Commissioner's decision. (Docket # 1).

II. Relevant Medical Evidence[2]

A. Medical Records

1. School Psychologist Report

On February 10, 1997, school psychologist H. Lynne Collins ("Collins"), PhD, conducted a psychological examination of Dyer.[3] (Tr. 538-40). The report indicates that Dyer was initially referred for evaluation by her pre-first grade teacher, who expressed concerns regarding Dyer's concept and academic development and her impulsivity and distractibility. ( Id. ). Dyer had been diagnosed with a bilateral Wilms tumor when she was five months old. ( Id. ). A comprehensive psychological evaluation was conducted in 1991, and the Committee for Special Education ("CSE") classified Dyer as "multiply handicapped" and placed her into a 15:1 classroom. ( Id. ). In 1994, Dyer was re-evaluated and assessed to have a Verbal Scale Intelligence Quotient ("IQ") of 65, a Performance Scale IQ of 66 and a Full Scale IQ of 63. ( Id. ). The results of the February 1997 testing demonstrated that Dyer had a Verbal Scale IQ of 59, a Performance Scale IQ of 72 and a Full Scale IQ of 63. ( Id. ).

2. University of Rochester Medical Center

Treatment notes indicate that Dyer received treatment at the Pediatric Hematology and Oncology Department of the University of Rochester Medical Center ("URMC") for over twenty years. (Tr. 386-87). According to the records, Dyer was diagnosed with a bilateral Wilms tumor (cancer of the kidney) when she was five months old. ( Id. ). Her left kidney was removed and she was treated with chemotherapy. ( Id. ). During the course of her treatment, in May 1986, Dyer suffered a cardiopulmonary arrest lasting approximately seventeen minutes. ( Id. ). The cardiac arrest led to anoxia of the brain and accompanying neurocognitive damage. ( Id. ). Since that time, Dyer has been monitored at URMC for recurrence of cancer and provided referrals and guidance for medical and cognitive issues. ( Id. ).

On September 22, 2004, Dyer was evaluated at URMC by Andrea S. Hinkle ("Hinkle"), MD. (Tr. 296-98). Treatment notes indicate that Dyer had recently graduated from school with an IEP diploma and had been volunteering in childcare at the YMCA. ( Id. ). Dyer reported that she was involved in a long-term monogamous relationship and was interested in finding employment. ( Id. ). She indicated that she had been in touch with the VESID program, but had not been contacted regarding job placement. ( Id. ). Upon examination, Hinkle noted neurocognitive limitations. ( Id. ). Dyer also met with the educational liaison, Kathy Wissler ("Wissler"), who indicated that she would assist Dyer in communicating with VESID to facilitate job training and employment placement. ( Id. ).

Dyer returned for an evaluation by Hinkle on September 3, 2005. (Tr. 293-95). Dyer reported that she had been working at a hotel performing housekeeping and laundry tasks during the previous year. ( Id. ). She stated that she worked forty hours a week and enjoyed her employment, but indicated that it provided minimal benefits and she was looking for other employment. ( Id. ). According to Dyer, she lived with her mother and stepfather and socialized with her friends. ( Id. ). According to Hinkle, Dyer demonstrated a successful work record, but needed to obtain insurance benefits. ( Id. ).

On March 28, 2007, Dyer returned to URMC for an evaluation by Olle Jane Z. Sahler ("Sahler"), MD. (Tr. 291-92). She reported that she lived with her mother, stepfather and younger sister and was currently employed at a loan service company. ( Id. ). Sahler opined that Dyer's medical issues appeared stable, with the exception of her hypertension and possible hematuria. ( Id. ).

The following year, on March 26, 2008, Dyer attended a monitoring appointment with Sahler. (Tr. 289-90). Dyer continued to live with her mother, stepfather and sister and was still employed by the loan service company. ( Id. ). Again, Sahler noted that Dyer's medical issues appeared stable, with the exception of hypertension, potential hematuria and an increased creatinine level. ( Id. ).

B. Medical Opinion Evidence

1. Sara Long, PhD

On May 6, 2010, state examiner Sara Long ("Long"), PhD, conducted a consultative psychiatric evaluation of Dyer. (Tr. 341-44). Dyer reported that she lives with her mother and stepfather and was driven to the evaluation by her grandfather. ( Id. ). She reported she had graduated from high school with an IEP diploma and had attended special education classes and BOCES training in graphic communications. ( Id. ). Dyer indicated that she had worked at her previous employment for ten months and, although she had been performing her job adequately, her employment had been terminated because she was unable to pass the company's test after several attempts. ( Id. ).

According to Long, medical records indicated that Dyer had been diagnosed with kidney cancer when she was five months old and had been classified as having a traumatic brain injury. ( Id. ). Dyer reported that she was able to care for her own personal hygiene and was able to cook, clean, do laundry and shop, although she reported difficulty with calculating change. ( Id. ).

Upon examination, Long noted that Dyer appeared appropriately dressed and well-groomed, with normal gait, motor behavior and eye contact. ( Id. ). Long opined that Dyer had fluent, clear speech with adequate language, coherent and goal-directed thought processes, euthymic mood, full range affect, clear sensorium and full orientation. ( Id. ). Long opined that she appeared to be functioning on an extremely low intellectual level with a limited fund of information. ( Id. ). According to Long, Dyer's childhood intelligence scores demonstrated that she had a Full Scale IQ of 63 and that her visual-perceptual skills placed her at a five-year-old level when she was nine years old. ( Id. ). With respect to her attention and concentration, Long noted that Dyer was unable to subtract three from twenty-seven. ( Id. ). According to Long, Dyer could recall three objects immediately and one out of three objects after five minutes, and she could complete five digits forward and two back. ( Id. ).

According to Long, Dyer could follow and understand simple directions and instructions, perform simple tasks, maintain attention and concentration and maintain a regular schedule. ( Id. ). According to Long, Dyer may have some limitations learning new tasks, performing complex tasks independently and making appropriate decisions. ( Id. ). Long further opined that Dyer appeared to relate adequately with others and to have adequate stress management. ( Id. ). According to Long, the examination suggested that she suffered from cognitive problems that appeared to interfere with her ability to function on a regular basis. ( Id. ). Dyer reported that she was able to learn tasks if they were demonstrated, but had difficulty with verbal explanations. ( Id. ). Long suggested that Dyer's difficulty was not in securing employment, but in retaining employment without appropriate accommodations. ( Id. ).

Long opined that Dyer would be appropriate for a sheltered workshop or a job coach and suggested training through VESID. ( Id. ). According to Long, Dyer's prognosis was good with vocational evaluation and ongoing counseling. ( Id. ).

On August 18, 2011, Long conducted an intelligence evaluation of Dyer. (Tr. 553-58). According to Long, testing demonstrated that Dyer had a Full Scale IQ of 71 and could read at a fourth grade level. ( Id. ). According to Long, her IQ scores were two points above an extremely low level, but compared with her childhood scores, demonstrated that her functioning had improved over time. ( Id. ). Long observed that Dyer exhibited stress while performing tasks over time, likely as a result of cognitive fatigue or challenge. ( Id. ).

On that same date, Long conducted another psychiatric evaluation of Dyer. (Tr. 548-52). Dyer reported that she continued to live with her mother and stepfather and was driven to the evaluation by her mother. ( Id. ). She reported that she was working part-time in a fitting room without any problems. ( Id. ). According to Dyer, she enjoyed working, but thought it would be difficult to work on a full-time basis. ( Id. ). Again, she reported that she was able to care for her personal hygiene, cook, do laundry and shop. ( Id. ).

Upon examination, Long noted that Dyer appeared appropriately dressed and well-groomed, with normal gait, motor behavior and eye contact. ( Id. ). Long opined that Dyer had fluent, clear speech with adequate language, coherent and goal-directed thought processes, euthymic mood, full range affect, clear sensorium and full orientation. ( Id. ). Long opined that she appeared to be functioning at a borderline intellectual level, approximately two points above the extremely low range. ( Id. ). According to Long, Dyer could read at a fourth grade level. ( Id. ). With respect to Dyer's attention and concentration, Long noted that she was unable to subtract three from twenty. ( Id. ). According to Long, she could recall three objects immediately and three out of three objects after five minutes, and she could complete five digits forward and three back. ( Id. ).

According to Long, Dyer could follow and understand simple directions and instructions, perform simple tasks, maintain attention and concentration, maintain a regular schedule and learn some new tasks. ( Id. ). According to Long, Dyer might have some limitations performing complex tasks and making appropriate decisions. ( Id. ). Long further opined that she appeared to relate adequately with others and to have adequate stress management, although Long noted that testing revealed that her functioning tended to deteriorate over time, suggesting that her stress threshold would decrease with stress and over time. ( Id. ).

According to Long, the examination suggested that Dyer suffered from cognitive problems that appeared to interfere with her ability to function on a regular basis. ( Id. ). Dyer indicated that she can manage at work, but gets frustrated with her ability to comprehend. ( Id. ). Long noted that Dyer had scored in the borderline intellectual level with the majority of her "sub scores" falling in the borderline to low average range. ( Id. ). Long also noted that her cognitive functioning was tested over a limited time period. ( Id. ). According to Long, the impact of the injury to Dyer's brain apparently related primarily to the frontal lobe functions and processing, suggesting that her processing breaks down over time and with stress. ( Id. ). Long opined that these observations were consistent with Dyer's report that she would have difficulty working longer hours, even for a job that she currently performs on a part-time basis. ( Id. ). Long suggested that her observations were also consistent with concerns raised by URMC that Dyer might suffer impairments in her executive functioning. ( Id. ).

Long diagnosed Dyer with a reading, spatial ability and perceptual organization learning disability and did not rule out organicity. ( Id. ). Long recommended that Dyer continue to work on a part-time basis, and that she consider additional education, training, stress management and psychotherapy. ( Id. ). Long opined that Dyer's prognosis for maintaining her current level of general and vocational functioning was good, but that her functioning could be negatively impacted by increased stress, work volume and health issues. ( Id. ).

Long also completed a medical source statement assessing Dyer's mental ability to do work-related activities. (Tr. 559-61). According to Long, Dyer had no limitations in her ability to understand, remember and carry out simple instructions, make judgments on simple work-related decisions, and interact appropriately with the public, supervisors and coworkers. ( Id. ). Long assessed that Dyer suffered from moderate limitations in her ability to understand and remember complex instructions and marked limitations in her ability to carry out complex instructions, make judgments on complex work-related decisions, and respond appropriately to usual work situations and to changes in a routine work setting. ( Id. ).

2. T. Inman-Dundon, Psychology

On May 13, 2010, agency medical consultant Dr. T. Inman-Dundon ("Inman-Dundon") completed a Psychiatric Review Technique. (Tr. 358-71). Inman-Dundon concluded that Dyer's mental impairments did not meet or equal a listed impairment. ( Id. ). According to Inman-Dundon, Dyer suffered from no limitations in her ability to maintain social functioning, mild limitations in her activities of daily living and moderate limitations in her ability to maintain concentration, persistence or pace. ( Id. ). In addition, according to Inman-Dundon, Dyer had not suffered from repeated episodes of deterioration. ( Id. ). Inman-Dundon completed a mental RFC assessment. (Tr. 372-75). Inman-Dundon opined that Dyer suffered from moderate ...


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