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Mahon v. Colvin

United States District Court, E.D. New York

March 31, 2016

DEBRA M. MAHON, Plaintiff,


          PAMELA K. CHEN, United States District Judge

         Plaintiff Debra Mahon (“Plaintiff”) brings this action under 42 U.S.C. § 405(g), seeking judicial review of the Social Security Administration's (“SSA”) denial of her claim for Disability Insurance Benefits (“DIB”). The parties have cross-moved for judgment on the pleadings. (Dkts. 13, 15.) Plaintiff seeks reversal of the Commissioner's decision and an immediate award of benefits, or alternatively, remand for further administrative proceedings. The Commissioner seeks affirmation of the denial of Plaintiff's claims. For the reasons set forth below, the Court GRANTS Plaintiff's motion for judgment on the pleadings and DENIES the Commissioner's motion. The case is remanded for further proceedings consistent with this opinion.



         Plaintiff applied for DIB on May 26, 2011, claiming disability beginning on May 1, 2009. (Tr. 12, 17.)[1] She was 32 years old on the onset date of her alleged disability. (Tr. 132.) On January 6, 2012, the SSA denied Plaintiff's claim. (Tr. 12.) Plaintiff requested a hearing before an administrative law judge (“ALJ”) on January 13, 2012. (Id.) On February 6, 2013, Plaintiff applied for Supplemental Security Income (“SSI”). (Tr. 167.) On May 30, 2013, ALJ Jack Russak held a video hearing (“ALJ Hearing”), where Plaintiff and her attorney appeared in Staten Island, New York, and the ALJ presided from Jersey City, New Jersey. (Tr. 12.) On August 28, 2013, the ALJ denied Plaintiff's DIB and SSI claims and found Plaintiff not disabled under sections 216(i) and 223(d) of the Social Security Act. (Tr. 22.) On March 12, 2015, the ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review. (Tr. 1-5.) Plaintiff timely filed this action on May 7, 2015, seeking review of the ALJ's decision. (Dkt. 1.)


         A. Non-Medical Evidence

         1. Plaintiff's Testimony at the ALJ Hearing

         At the May 30, 2013 ALJ Hearing, Plaintiff testified before the ALJ that she had a high school education and worked for several different employers between 1998 and 2009. (Tr. 33, 47.) In her most recent employment, Plaintiff worked as a customer service supervisor. (Tr. 48- 49.) Plaintiff was terminated from most of her jobs, including the last one, because, according to her, she “couldn't keep up, couldn't prioritize, couldn't pay attention” and because she would occasionally miss work. (Tr. 42.) Plaintiff's absences fluctuated, and she would miss work more than twice a month at times when she felt “depressed” and “didn't want to go in.” (Tr. 43.)

         Plaintiff informed the ALJ that she “struggled with a lot of ups and downs” throughout her life, including two failed marriages. (Tr. 41.) She could “get very aggressive in some senses, get very . . . vulgar . . . very physical.” (Tr. 37.) When the depression occurred, she “[did not] sleep, [would] get tired, [would] cry a lot . . . oversleep and [would not] shower.” (Tr. 37.) Plaintiff testified that every few months there would be instances when she did not want to shower or get out of bed, and sometimes such situations would “last a couple of days” or “a week.” (Tr. 43-44). Plaintiff stated that she had trouble maintaining attention and remembering appointments. (Tr. 44.) She had one close friend, but was not close with her family because of altercations and fights over the years. (Tr. 38, 45.)

         Plaintiff lived with her two children, who were eleven and two-and-a-half years old at the time of the hearing. (Tr. 31-32.) She testified that she had a driver's license and drove her two children to her mother's home for babysitting. (Tr. 32.) Plaintiff also brought her daughter to school. (Tr. 39.) She testified that she cooked for herself and her children, shopped, washed clothes, and cleaned the apartment, but she seemed to indicate that she could not cook, shop, do laundry, or clean on a regular basis.[2] (Tr. 38-39.) She maintained a checking account, used a computer, engaged in social media, and could do basic math. (Tr. 32-33.) In July, 2012, Plaintiff went to Mexico for vacation. (Tr. 37.) She stated that her medications made her feel “mentally numb.” (Tr. 36.)

         2. Vocational Expert Testimony

         The rest of the ALJ Hearing was devoted to the vocational expert's (“VE”) opinions as to whether jobs existed in the national economy for an individual of Plaintiff's age, education, work experience, and Residual Functional Capacity (“RFC”). The VE testified that someone with Plaintiff's age, education, and work experience, with the ability to perform “simple, routine tasks . . . in a low stress job having only occasional decision making, only occasional changes in the work setting . . . with only occasional judgment . . . [and] occasional interaction with the public . . . co-workers, and . . . supervision, ” would not be able to engage in Plaintiff's past work. (Tr. 49-50.) The VE noted that under the Dictionary of Occupational Titles (“DOT”), [3] the following three occupations could be available to Plaintiff based on the ALJ's hypothetical: small products assembler, linen room attendant, and bench assembler. (Tr. 50-51.) When the ALJ added a restriction that the person was not able to perform fast-paced work, the VE stated that the two assembly jobs would no longer be available, but that the person could do the work of a mail clerk or a retail price marker. (Tr. 51-52.) The VE testified that if a person went off task between five to 20 percent of the time, or if the person had more than one unscheduled absence per month, there would be no jobs available at all. (Tr. 52-53.) The VE testified that if the person was off task more than seven percent of the time, there would be no jobs available. (Tr. 53.) 3. Letter of Employment Termination Plaintiff submitted to the Appeals Council a letter dated January 27, 2014, informing Plaintiff that her employment as a customer service supervisor with Flat Rate Long Distance, Inc. had been terminated immediately due to “poor performance and violation of company pol[i]cies.” (Tr. 326.)


         1. Treating Physicians

         a. Dr. Elizabeth Fitelson, M.D.

         Dr. Fitelson, a psychiatrist and expert in treating mental illness during pregnancy and the postpartum period, started treating Plaintiff in July 2010-when Plaintiff was 13 weeks pregnant. (Tr. 237, 305.) At that time, Plaintiff reported that she was not working, and lived with her ex-husband and daughter. (Tr. 305.) She presented for evaluation and treatment of Bipolar Disorder, and had a long history of affective instability dating to childhood, with prior self-destructive behaviors while manic, although she had not attempted suicide or been hospitalized, and was generally high-functioning. (Id.) Over the prior three years, her mood had been well-stabilized on Effexor and Neurontin in combination with regular psychotherapy. (Id.) However, Plaintiff had tapered all medications when she found out she was pregnant, and had become increasingly depressed and irritable, with worsening mood swings. (Id.) Plaintiff reported having mood swings every 30 seconds, crying all the time when she was home, and anhedonia, [4] stating that nothing made her happy. (Id.) Plaintiff was not sleeping at all; she would fall asleep and then wake up, tossing and turning with racing thoughts and rumination. (Id.) She was anxious about everything, had difficulty breathing, and would feel her anxiety in her chest. (Id.) Plaintiff reported going days without showering and “moping around.” (Id.) She had low appetite and low energy, had lost weight, experienced feelings of hopelessness, and could be physically aggressive, having previously punched her husband in the head. (Id.)

         Plaintiff reported having abused alcohol and marijuana, and having tried multiple drugs, cocaine, and THC, though she was not on anything during the pregnancy. (Tr. 306.) Dr. Fitelson observed that Plaintiff was appropriately dressed, her attitude was cooperative, her speech was normal, her mood was depressed and anxious, her affect was tearful and anxious, and her thought process was normal. (Id.) Plaintiff denied suicidal or homicidal thoughts, and demonstrated intact judgment and good insight. (Id.)

         Dr. Fitelson wrote that Plaintiff presented with 6/9 criteria for an MDE[5] with prominent irritability, insomnia, hopelessness, and mood lability[6] that was significantly impacting her ability to function in multiple settings. (Id.) Dr. Fitelson prescribed Clonazepam. (Tr. 307.) Dr. Fitelson and Plaintiff discussed other drug options. (Id.)

         On July 30, 2010, Plaintiff met with Dr. Fitelson again. (Tr. 310.) Since the prior appointment, they had spoken on the phone several times, and Dr. Fitelson had prescribed Lamictal. (Id.) Dr. Fitelson reported that Plaintiff was doing better on medication. (Id.) During a visit on September 3, 2010, Plaintiff reported feeling depressed, anxious, and guilty after her daughter had been in a car accident. (Tr. 312.) Dr. Fitelson observed that Plaintiff's mood was irritable and anxious, her affect was euthymic, [7] and her thought process was normal. (Id.) Dr. Fitelson increased Plaintiff's dose of Lamictal. (Id.)

         On October 21, 2010, Plaintiff's mood had continued to improve, though she still reported being “slightly more depressed than her baseline.” (Tr. 314.) She had been very busy and stressed, her irritability was “up and down, ” she was well functioning, and her appetite was normal. (Id.) Her mood was “OK.” (Id.) Dr. Fitelson again increased Plaintiff's dose of Lamictal. (Id.)

         On March 24, 2011, Dr. Fitelson noted that Plaintiff had delivered her baby and that Dr. Fitelson had conducted phone sessions with Plaintiff over the past several months. (Tr. 316.) Plaintiff reported continuing to struggle with her mood and morale, in light of her acrimonious separation from her husband, financial pressures, and caring for a newborn. (Id.) She often felt overwhelmed, but denied suicidal ideation, and continued to find regular sessions with her therapist helpful. (Id.) Plaintiff's mood was “not inappropriate” and dysphoric, [8] her affect was constricted, and her thought processes were normal, her judgment was intact and her insight was good. (Id.) Dr. Fitelson wrote that Plaintiff was currently taking Clonazepam and Lamotrigine. (Id.) The doctor wrote that despite Plaintiff's low mood, anxiety, and several stressors, she continued to function adequately caring for herself and her children, though she was unable to work at the time. (Tr. 316.)

         In a May 2, 2011 letter, Dr. Fitelson summarized her treatment of Plaintiff. (Tr. 238.) She wrote that she had been meeting with Plaintiff on a monthly basis since July 2010. (Tr. 238.) Dr. Fitelson reported that Plaintiff had stopped all of her medications during pregnancy due to concerns about causing harm to the baby, and as a result of stopping medication, Plaintiff's mood and level of functioning had declined “precipitously.” (Id.) Plaintiff exhibited symptoms consistent with a Major Depressive Episode: low mood, tearfulness, irritability, poor sleep, low energy, low appetite with several-pound weight loss (despite the pregnancy), anhedonia, and hopelessness. (Id.) Plaintiff was having severe anxiety with panic symptoms such as upset stomach, tightness in her chest, difficulty breathing, mood swings, and lability. (Id.) She had on a few occasions “act[ed] out physically toward her husband, ” though Dr. Fitelson reported that she had never put her children at risk. (Id.) Dr. Fitelson opined that Plaintiff's symptoms “significantly affected her ability to function in interpersonal as well as work settings.” (Id.) Dr. Fitelson prescribed Lamotrigine, a mood stabilizer, as well as Clonazepam, an anti-anxiety medication for Plaintiff to improve her symptoms during pregnancy. (Id.) Thereafter, Plaintiff's symptoms improved, and her depression went into partial remission; however, she continued to be anxious and irritable, and continued to have poor functioning. (Id.) Dr. Fitelson wrote that Plaintiff's husband had left her during her pregnancy, which had had a “severe negative effect on her mental health and ability to function” and had led to severe stress, anxiety, and more depression. (Id.) Medical complications in the pregnancy had led Plaintiff to be on bedrest for several months, after which Dr. Fitelson had managed her treatment and medication by phone. (Id.) Dr. Fitelson reported that they remained in frequent contact via phone, and Plaintiff was compliant with treatment recommendations. (Id.) However, while on bedrest Plaintiff had become more isolated, and had difficulty caring for herself appropriately. (Tr. 237-38.)

         After the baby was born, Plaintiff became more anxious and depressed, and required adjustment to her medication; Dr. Fitelson prescribed daily Lamotrigine and Clonazepam. (Tr. 238.) At the time of Dr. Fitelson's letter (May 2, 2011), she wrote that Plaintiff's symptoms were “somewhat improved” but that she remained able to function in only a limited capacity, due to depressive symptoms, anxiety, irritability, and mood lability. (Tr. 238.)

         Dr. Fitelson also characterized Plaintiff's past psychiatric history in the May 2, 2011 letter. She stated that Plaintiff had had mood instability and anxiety since childhood, had experienced depressive symptoms for much of her adolescence, and had had several manic or hypomanic episodes involving self-destructive behavior, such as traveling across the country spontaneously, spending herself into debt, past (but not present) substance abuse, chaotic relationships, and poor judgment such as drunk driving. (Tr. 238.) Dr. Fitelson wrote that Plaintiff's last manic episode had been over two years before. (Id.)

         Dr. Fitelson wrote that after Plaintiff's diagnosis of Bipolar Disorder, Plaintiff had been put on mood-stabilizing medication. (Id.) Her erratic behavior and symptoms had begun to improve, and she was able to develop stable relationships. (Id.)

         Dr. Fitelson diagnosed Axis I-Bipolar Disorder Type I, with her most recent episode being depressed, Axis II-Borderline Personality Disorder, Axis III-Postpartum, and Axis IV-“Severe”-marital separation, and being a single mother for two small children. She stated that Plaintiff's global assessment of function (GAF) score ranged from 55 to 70.[9]

         Dr. Fitelson opined that Plaintiff was currently not able to function in a work setting due to her Bipolar Disorder. She wrote that Plaintiff's pattern of mood instability and affective lability had significantly impaired her ability to work and had led to job losses. (Tr. 238, 247.) She wrote that Plaintiff's moderate depressive and anxiety symptoms were severe, and that her low energy, impaired concentration, irritability, anhedonia, and sleep dysregulation rendered her unable to perform adequately in a professional environment. (Tr. 247.) Dr. Fitelson wrote that Plaintiff's current situational stressors contributed to her symptoms, and that the stress of a work environment on top of those stressors would exacerbate her illness. (Id.) The doctor wrote that she expected Plaintiff to eventually return to a level of functioning that would enable her to work, but believed that her disability would likely persist for another 12 months. (Id.)

         Dr. Fitelson also completed a Psychiatric/Psychological Impairment Questionnaire on June 24, 2011. Dr. Fitelson diagnosed Plaintiff with Bipolar Disorder and Borderline Personality Disorder, with a current GAF score of 55. (Tr. 239.) Clinical findings included appetite disturbance with weight change, sleep disturbance, mood disturbance, emotional lability, anhedonia or pervasive loss of interests, feelings of guilt/worthlessness, difficulty thinking or concentrating, social withdrawal or isolation, decreased energy, generalized persistent anxiety, and hostility and irritability. (Tr. 240.)

         Dr. Fitelson wrote that Plaintiff had difficulty maintaining appropriate behavior under strain, and would respond with irritability, impulsivity, and acting out. (Tr. 240.) Most recently Plaintiff had become more depressed, with poor concentration, withdrawal, and fearfulness. (Id.) Dr. Fitelson listed Plaintiff's primary symptoms as low mood, irritability, impaired concentration, guilt, social withdrawal, anxiety, increased sleep, and affective lability. (Tr. 241.)

         Dr. Fitelson reported that Plaintiff had no limitations in her ability to remember locations and work-like procedures, understand, remember, or carry out instructions, ask simple questions or request assistance, respond appropriately to changes in the work setting, be aware of normal hazards and take appropriate precautions, or travel to unfamiliar places or use public transportation. (Tr. 242-44.) She reported that Plaintiff was mildly limited in her ability to make simple work-related decisions, interact appropriately with the general public, maintain socially appropriate behavior, and adhere to basic standards of neatness and cleanliness. (Tr. 243.)

         Dr. Fitelson reported that Plaintiff was markedly limited in her ability to maintain attention and concentration for extended periods, perform activities within a schedule, maintain regular attendance, be punctual within customary tolerance, sustain ordinary routine without supervision, work in coordination with or proximity to others without being distracted by them, complete a normal workweek without interruptions from psychologically based symptoms, perform at a consistent pace without an unreasonable number and length of rest periods, accept instructions and respond appropriately to criticism from supervisors, and get along with co-workers or peers without distracting them or exhibiting behavioral extremes. (Tr. 242-43.) Dr. Fitelson wrote that Plaintiff experienced episodes of deterioration or decompensation in work settings that would cause her to withdraw and/or experience exacerbation of signs and symptoms, explaining that under stress at work, Plaintiff exhibited inappropriate irritability and impulsivity, which resulted in her jobs ending. (Tr. 244.) Dr. Fitelson wrote that anxiety and poor concentration also impaired Plaintiff's functioning. (Id.)

         Finally, Dr. Fitelson reported Plaintiff's impairments were ongoing and would last at least twelve months, that Plaintiff was not a malingerer, could handle a low degree of work-related stress, had “good days” and “bad days, ” and was likely to be absent from work more than three times per month. (Tr. 245-246.)

         On May 12, 2011, Plaintiff reported to Dr. Fitelson that her mood had generally been stable, despite severe stressors. (Tr. 318.) She was anxious, had low appetite, and had lost weight. (Id.) However, she said she was coping with the extreme stressors of her divorce proceedings. (Id.) Dr. Fitelson found that Plaintiff's mood was anxious, her affect was constricted, and her thought processes were normal. Her judgment continued to be intact and her insight continued to be good. (Id.) Dr. Fitelson wrote that Plaintiff was “generally doing well in terms of mood stability” on the Lamictal, although she had some dysphoria and anxiety related to acute and ongoing severe stressors. (Id.)

         On June 24, 2011, Plaintiff stated that she was feeling less stressed and that her appetite had improved, although she continued to feel socially isolated, and at times would get depressed and not want to get out of bed or shower consistently. (Tr. 320.) When she would have conflict-ridden interactions with her ex-husband, she would experience extreme anxiety, distress, tearfulness, catastrophizing, but could “pull [her]self back together” after a few days. (Id.) She felt that the medication was helpful, and reported sleeping well because of being exhausted from the baby. (Id.) Dr. Fitelson reported that Plaintiff's mood was “OK, stressed, ” her affect was calm, and appropriate, and her thought processes were normal. (Tr. 320.) Dr. Fitelson wrote that Plaintiff's mood and anxiety were improved, although she still struggled with anxiety, distress tolerance, and some mood lability. (Id.)

         On July 28, 2011, Plaintiff stated that she was “in general doing ok, ” and was managing as well as could be expected. (Tr. 322.) She reported that two weeks prior, she had been in a state of high anxiety for two days after receiving distressing news from her husband's lawyer. (Id.) In response, she exhibited irritability, decreased sleep, feelings of panic, and increased activity, and Dr. Fitelson opined that it sounded more like anxiety than hypomania. (Id.) Plaintiff reported that she continued to feel more isolated than her baseline, but attributed much of it to her situation as a single mother of two. (Id.) She reported that her mood was stable at times. (Id.) Dr. Fitelson reported that Plaintiff's mood was anxious, her affect was appropriate, and her thought processes were normal. (Id.)

         b. Dr. Merren ...

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