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Berry v. Commissioner of Social Security

United States District Court, S.D. New York

July 29, 2015

RONALD BERRY, Plaintiff,



In March 2007, several months after quitting a job that he had held for almost 17 years, Plaintiff Ronald Berry filed claims with the Social Security Administration for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"), alleging a disability that began in February 2006; his claims were denied four months later, and he did not appeal from those decisions. Five years later, in March 2012, Plaintiff again filed for DIB and SSI benefits, this time alleging a disability that began in June or December 2006. When those claims were denied - based on a finding that Plaintiff was not disabled under the Social Security Act (the "Act") - Plaintiff filed this action pursuant to 42 U.S.C. ยงยง 405(g) and 1383(c)(3) to obtain judicial review of the final decision of the Acting Commissioner of Social Security (the "Commissioner"). The parties have cross-moved for judgment on the pleadings. For the reasons set forth in the remainder of this Opinion, Defendant's motion is denied, and Plaintiff's motion is granted in part.


A. Plaintiff's Proffered Ailments

Plaintiff, who was born in 1972, worked as an attendant in a parking garage from August 1989 to June 2006; his job responsibilities centered on taking tickets and collecting money from garage patrons. (SSA Rec. 27, 116, 131). On March 26, 2007, Plaintiff filed claims for DIB and SSI benefits with the Social Security Administration, claiming disabling impairments that began in or about February 2006. ( Id. at 97-106). His claims were denied on July 25, 2007, based on the Administration's finding that Plaintiff remained capable of engaging in substantial gainful activity. ( Id. at 97). No appeal was taken. ( Id. ).

Plaintiff again filed applications for DIB and SSI on March 26 and 27, 2012, respectively, this time alleging disabling impairments since June 10 or December 31, 2006. (SSA Rec. 81-96, 115; see also id. at 131). Specifically, Plaintiff alleged that he had become disabled due to anxiety disorder, depression, panic attacks, hypertension, heart problems, arthritis, gout, insomnia, and agoraphobia. ( Id. at 115).[3] During his April 29, 2013 hearing before an Administrative Law Judge ("ALJ"), Plaintiff testified that he was unable to return to work because of the anxiety he felt when he was around others. ( Id. at 34-35). He feared that other people would physically hurt him. ( Id. at 35). Plaintiff also worried about displaying symptoms of schizophrenia, with which he said his brother was afflicted. ( Id. ).

In a function report submitted to the Social Security Administration dated April 8, 2012, Plaintiff further reported experiencing insomnia, disturbing dreams, thoughts of death, and mood swings. (SSA Rec. 124-25). Plaintiff lived with his mother, and on a typical day watched television and wrote his thoughts on a computer or on paper. ( Id. at 123-24, 127). He did not prepare his own meals because he had lost his appetite and his desire to cook. ( Id. at 125). Plaintiff cleaned, washed laundry, and emptied the garbage, but said he did not like yardwork due to his fear of the outdoors. ( Id. at 126). Plaintiff said that he could go out alone "[i]f [he] must!, " such as to a doctor's appointment. ( Id. ). At the same time, he indicated that he could not go outside because crowds caused severe panic attacks, and he was afraid to go outside alone in the event that he fainted. ( Id. at 126-27). Separately, Plaintiff reported having problems getting along with authority figures, because he could not "stand anyone who abuses their authority." ( Id. at 130). He also reported problems paying attention, occasional trouble remembering things, and difficulty finishing tasks. ( Id. at 130-31).

Plaintiff claimed to have stopped driving because of his involvement in an automobile accident and his fear of having a panic attack while driving. (SSA Rec. 127). He did not go shopping and relied on friends and family to shop for him. ( Id. ). Plaintiff reported that his ability to handle money had not changed since the onset of his disabilities, and that he was able to pay bills, count change, and handle a savings account. ( Id. ). He described himself as antisocial and preferred to be alone; however, he acknowledged spending time with close family and friends, and even had a fiancee. ( Id. at 123, 128).

In terms of physical impairments, Plaintiff related that he had trouble lifting due to a previously torn rotator cuff. (SSA Rec. 128). He further indicated that during gout flareups he used a cane or crutches, and had trouble standing, walking, climbing stairs, kneeling, and squatting. ( Id. at 128-30). Plaintiff claimed no problems with sitting, reaching, using his hands, seeing, hearing, and talking. ( Id. at 129).

Also in the April 8, 2012 function report, Plaintiff stated that while he was only diagnosed with an anxiety disorder in 2006, he had suffered from the condition since the late 1990s. (SSA Rec. 131). Plaintiff indicated that his panic attacks occurred weekly, and that they were triggered by memories of the sudden deaths of close family members and friends, of their funerals, and of "near death" experiences. ( Id. ). Plaintiff stated that he "use[d] to self-medicate with alcohol" when he felt an attack coming, but that now he "stay[ed] to himself" and had been "experimenting" with prescribed medicines. ( Id. at 131). To treat his conditions, Plaintiff reported taking Atenolol, [4] Sertraline, [5] and Lexapro, [6] as prescribed by his doctors. ( Id. at 132). He also stated that he visited a therapist weekly and a psychiatrist at least monthly. ( Id. ).[7]

In the claim form he submitted in March 2012, known as a Form SSA-3368, Plaintiff provided his education and work history. (SSA Rec. 114-17). Plaintiff received his General Equivalency Diploma ("GED") in 1990. ( Id. at 116). And as noted previously, Plaintiff held one job as a garage attendant for nearly 17 years, from August 1989 until he stopped working on June 7, 2006. ( Id. at 115-16). Plaintiff stated in his claim form that he stopped working because he was "taking too many days off of work for not feeling mentally able to face the outside world. Anxiety, [p]anic, and [h]ypertension." ( Id. at 115). He added that "stress and threats from work did not help[, but] [o]nly worsened [his] conditions." ( Id. ).

B. Plaintiff's Evaluations

The crux of Plaintiff's disability claims concerns his psychological state during the relevant time period. The record before the Court suggests that Plaintiff received little if any psychological treatment until 2012, shortly before he submitted his second set of disability claims to the Social Security Administration. ( Compare SSA Rec. 235 (relating Plaintiff's statement that he had never before received psychiatric treatment, taken "psych meds, " or been treated at a psychiatric hospital), with id. at 218, 243 (relating Plaintiff's memory of therapy when he was twelve years old)). The views of his treating and consultative professionals in 2012 and 2013 are discussed in this section.

1. Jewish Board of Family and Children's Services, Inc.

a. Yerelyn C. Reyes, LCSW[8]

On January 10, 2012, Plaintiff had an intake assessment with social worker Yerelyn C. Reyes at the Jewish Board of Family and Children's Services ("JBFCS"). (SSA Rec. 241-62). While noting that he had experienced issues with anxiety and depression for some time, Plaintiff explained that he was seeking treatment because the symptoms were getting worse. ( Id. at 241). He indicated, nonetheless, that he was then looking for a job. ( Id. ). At the time of the interview, he had been prescribed Lexapro by his primary care physician. ( Id. ). However, Plaintiff related his propensity to consume alcohol in order to "man[]age his worries." ( Id. ).

Plaintiff stated that he had been feeling very anxious and having more panic attacks. (SSA Rec. 241). He described staying home more often to avoid anxiety, especially because he worried about "crossing a wide street near his home." ( Id. ). He spoke of having experienced many significant losses in his life, and that he often worried about death or receiving news of another loss. ( Id. ). Plaintiff relayed that he had had an electrocardiogram ("EKG") in November 2011 that revealed he had suffered a "mini heart attack, " which only exacerbated his worrying. ( Id. ). He also recalled that his symptoms worsened after he lost his job. ( Id. ).

Plaintiff reported that he had often been "in the streets" when he was younger and that he had "witnessed a lot of traumatic events." (SSA Rec. 251). He stated that when he was twelve years old, his twenty-one-year-old brother "was killed by being pushed into a train track" and that "another close friend was killed in the same way." ( Id. ). He communicated that he had lost friends to shootings, stabbings, and brain aneurisms. ( Id. ). He also reported that a close friend of his had been shot and killed after a New Year's Eve party; Plaintiff found this particularly difficult because he was supposed to have been at the same party. ( Id. ).

Ms. Reyes described Plaintiff as presenting with anxiety, depression, substance-related problems, trauma, and cognitive problems. (SSA Rec. 241-42). She noted that Plaintiff's symptoms included difficulty "falling asleep, " "shortness of breath, " "rapid heart beat, " "chest pains, " "light-headed or faint, " "brooding/worry/regrets re past behavior/experience/decisions, " "excessive worry re future events, or future consequences, " and "difficulty controlling worries." ( Id. at 245). She also noted a moderate risk of substance abuse. ( Id. at 250, 253).

In her mental status evaluation, Ms. Reyes reported that Plaintiff had downcast eye contact, but was cooperative and engaging and, indeed, appeared calm and comfortable. (SSA Rec. 256). Moreover, Plaintiff was articulate and expressive, and his speech volume and rate were appropriate. ( Id. ). Ms. Reyes noted that Plaintiff appeared sad and anxious, but that both his "affectintensity" and "affect-related to content" were "appropriate." ( Id. at 257). Ms. Reyes described Plaintiff's thought process as "organized" and without hallucinations, delusions, or other misperceptions. ( Id. ). Plaintiff appeared distracted during the interview, but was also alert and oriented as to person, time, place, and situation. ( Id. at 258). Ms. Reyes diagnosed Plaintiff with Anxiety Disorder Not Otherwise Specified ("NOS")[9] and assigned a Global Assessment of Functioning ("GAF") score of 55.[10] ( Id. at 261). With respect to the contemplated treatment protocol, Ms. Reyes suggested a plan of outpatient treatment, psychiatric evaluation, and medication, which plan was designed to help Plaintiff manage and stabilize his mood, while decreasing significantly his alcohol intake. ( Id. at 259).

b. Angela Lantz Smith, M.D.

JBFCS psychiatrist Angela Lantz Smith then evaluated Plaintiff on May 3, 2012. (SSA Rec. 216-38, repeated at id. at 263-85).[11] Plaintiff reported to Dr. Smith that he was taking Lexapro as prescribed by his primary care physician. ( Id. at 216). Plaintiff told her that he had been having "a few drinks" five times per week, but that he did not feel this was a problem. ( Id. ). Plaintiff noted that he was seeking employment. ( Id. ). Plaintiff reported that he "began experiencing anxiety in his late 20s or early 30s." ( Id. ). At some point, after experiencing difficulty sleeping, Plaintiff went to see a doctor for his symptoms. ( Id. ). Plaintiff told Dr. Smith that an EKG exam had revealed a "mini heart attack, " which caused him further anxiety. ( Id. ). Plaintiff also remarked that losing his job in 2006[12] had worsened his symptoms. ( Id. ).

When discussing his background and history, Plaintiff told Dr. Smith that he grew up "in the streets" and recounted several traumatic experiences, including the death of his brother and the fatal shooting of his close friend. (SSA Rec. 226). He also relayed that he "[had] lost many friends who were shot, stabbed, and had brain aneurisms." ( Id. ). He had "been in many fights" and "ha[d] knifed and robbed rivals." ( Id. at 235). He reported that "a favorite cousin was shot and left in a [sand pile] behind his [building]." ( Id. ). This event had "preoccupied him" to the point that his friends began to call him "panic button." ( Id. ).

Plaintiff also discussed his family with Dr. Smith, noting that he had a good relationship with his father and each of his three siblings. (SSA Rec. 227). He reported having three children, and had his first child at sixteen years old. ( Id. ).

In his conversations with Dr. Smith, Plaintiff provided further insight into his prior job as a garage attendant. (SSA Rec. 235). He noted, somewhat curiously, that the job suited his emotional issues, because the initial garage to which he was posted was close to his home and, more importantly, because once there, he stayed in his booth and rarely interacted with others. ( Id. at 236). He reported that in the year prior to being fired, his "employers were picking on' him because he was a bit oppositional, macho' as he put it about having to do things not part of his job descrip[tion], or not always wearing the right uniform." ( Id. at 235). He told Dr. Smith that he had "begun calling in sick a lot due to anxiety [symptoms] to the point where he was let go, " but that he had been "glad of this"; he thought he "could easily get another similar job since had [one] for 16 years, " but believed that the recession combined with his "untreated and severe anxiety" problems prevented him from finding one. ( Id. ).

Dr. Smith noted that Plaintiff's symptoms included "difficulty falling asleep, " "shortness of breath, " "rapid heartbeat, " "chest pains, " "light-headed or faint, " "brooding/worry/regrets re past behavior/experience/decisions, " "excessive worry regarding future events/future consequences, " and "difficulty controlling worries." (SSA Rec. 220). She reported that Plaintiff's mood was depressed, and that his affect was composed but also anxious. ( Id. at 230-31). However, Plaintiff was cooperative, engaging, and respectful; appeared calm and comfortable; spoke articulately, spontaneously, and expressively; and spoke at an appropriate volume and rate. ( Id. at 230). Although he was "a bit unkempt" and "slightly [malodorous], " Dr. Smith stated that Plaintiff related well, engaged, and was overall appropriately dressed. ( Id. at 236). And while Plaintiff "seemed somewhat anxious, " he did not then have symptoms of a panic attack, although "he [had been] worried that he might have symptoms and not be able to come today." ( Id. ). Dr. Smith diagnosed generalized anxiety disorder ("GAD")[13] since Plaintiff's adolescence, post-traumatic stress disorder ("PTSD")[14] since his late 20s, and panic disorder with agoraphobia[15] since approximately age 30; she also noted a GAF of 55. ( Id. at 236-37). Dr. Smith indicated that Plaintiff's prognosis was "fair, " and recommended outpatient treatment, psychiatric evaluation, and medication. ( Id. at 233). Dr. Smith noted that Plaintiff's memory was good, his cognition was average to above average, his insight was good, and his judgment was fair to good. ( Id. at 236). She prescribed Paxil[16] and, for his panic attacks, Ativan.[17] ( Id. ).

c. Andrew V. Lawton, LMSW[18]

Plaintiff participated in weekly therapy sessions with Andrew Lawton, a social worker at JBFCS, for nearly a year before his ALJ hearing. ( See SSA Rec. 30). In a progress note from July 13, 2012, Mr. Lawton memorialized a session with Plaintiff where the latter announced that he was having a "bad day, " and was malodorous. ( Id. at 239). While reporting that he was taking medications, Plaintiff also reported continued alcohol use, although he claimed that it was not excessive. ( Id. ). Mr. Lawton also reported that Plaintiff appeared less anxious by the session's end. ( Id. ).

Approximately one month before the ALJ hearing, Mr. Lawton had moved, and Plaintiff had been transferred to a different therapist, Anne Ames. (SSA Rec. 30). Mr. Lawton's professional opinions, as well as his discussions with Plaintiff about the transition in therapists, were memorialized in an "Integrative Treatment Plan Review/Change" report, dated March 16, 2013. (SSA Rec. 288-94). Mr. Lawton related Plaintiff's statements that "heightened anxiety continues to be present, " and of "feelings of depression as triggering of anxiety." (SSA Rec. 288). He also noted Plaintiff's "rising concern of psychosis given [his] family [history] of mental illness." ( Id. ). There were many positives in the report: Mr. Lawton noted that, over the treating relationship, Plaintiff had become "able to request help, " and was "a little more comfortable with expressing himself." ( Id. at 288-89; see also id. at 289 (noting that Plaintiff was "euthymic [i.e., neither depressed nor highly elevated] ov[e]rall though clearly a bit anxious, a bit depressed but no [suicidal or homicidal ideations], good spontaneous speech, though catastr[o]phizes, can be talked down"). In addition, the duration of Plaintiff's panic attacks was subsiding, going from several days to several hours. ( Id. at 288).

These were, however, counterbalanced, with several negatives: Mr. Lawton recorded that Plaintiff continued to self-medicate with alcohol, even "though he has been advised of the risks." (SSA Rec. 288). Again, Plaintiff was informed of the dangers of mixing alcohol with his prescribed medications. ( Id. at 290). Mr. Lawton also ...

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