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Nesbit-Francis v. Commissioner of Social Security

United States District Court, E.D. New York

February 14, 2017


          APPEARANCES: OSTERHOUT DISABILITY LAW, LLC Attorneys for Plaintiff By: Karl E. Osterhout, Esq. ROBERT L. CAPERS UNITED STATES ATTORNEY, EASTERN DISTRICT OF NEW YORK Attorney for Defendant By: Candace Scott Appleton, AUSA


          Denis R. Hurley United States District Judge

         Plaintiff Diane M. Nesbit-Francis ("Plaintiff") commenced this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social Security (the "Commissioner" or "Defendant") which denied her claim for disability insurance benefits and Supplemental Security Income. Presently before the Court are Plaintiff's motion and defendant's cross-motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the reason discussed below, Plaintiff's motion is denied and defendant's cross-motion is granted.


         I. Procedural Background

         Plaintiff applied for disability insurance benefits (DIB) on May 3, 2012, and for Supplemental Security Income (“SIB”) on May 16, 2012. (Transcript ("Tr.") 15.) Plaintiff alleges that since July 16, 2008, she has been disabled due to depression, and migraine headaches. (Tr. 19, 231.) She has been diagnosed with adjustment disorder, consisting of anxiety, depression, insomnia, anhedonia, and feelings of hopelessness. (Tr. 56, 348.)

         Plaintiff's DIB and SSI claims were denied on August 1, 2012. (Tr. 15.) Subsequently, Plaintiff filed a request for a hearing, which was held on July 2, 2013 before administrative law judge ("ALJ") David Z. Nisnewitz. (Tr. 15, 29-72.) Plaintiff waived her right to a lawyer. (Tr. 30-31.) Plaintiff, together with psychological expert, Dr. Sharon Grand, Ph.D. (Tr. 55-59, 64-67, 70-71), and vocational expert, Peter Mansey (Tr. 60-64) testified. This hearing was adjourned to obtain additional medical records from Dr. Ana Romeo, an internist and Plaintiff's primary care physician. (Tr. 71.) A second hearing was held on September 10, 2014, during which Plaintiff was represented by attorney Gabrielle Muller. (Tr. 74-132.) Plaintiff and psychological expert, Dr. Sharon Grand, testified again at the second hearing. However, a different vocational expert, Stephen Davis, testified. (Tr. 102-32.) On October 9, 2014, the ALJ determined that Plaintiff was not disabled. (Tr. 15-22.) Review by the Appeals Council was requested. (Tr. 6-9.) The Appeals Council reviewed the ALJ's decision in accordance with the terms of the Settlement Agreement in Padro v. Astrue, 11-CV-1788 (CBA)(RLM) and on January 27, 2015 denied the request for review. (Tr. 1-5, 10-14.) This action followed.

         II. Factual Background

         A. Non-Medical Evidence

         Plaintiff was born on September 16, 1956 and holds a bachelor's degree in human resources. (Tr. 32-33.) She has two adult children and one grandchild. (Tr. 35.) From 1991 to 1994, Plaintiff “volunteered” as a library liaison, although it was a paid position. (Tr. 38, 287.) From 1994 to 2000, Plaintiff worked as a community worker at a housing complex in the Bronx where her duties included managing client files, conducting fund-raising efforts, and completing internal reports. (Tr. 286.) This position entailed supervisory, budgeting, training, and client management skills. (Tr. 61, 286.) From 2000 until 2008, the Plaintiff worked as a program director for a rental assistance program helping clients who lived in transitional housing to locate permanent housing. (Tr. 37, 286.) In this role, she supervised three other people and was responsible for hiring and firing workers. (Tr. 286.) In addition to conventional desk work and paper work, Plaintiff would conduct home inspections and organize meetings. (Tr. 109.) She was let go from this position due to interpersonal conflicts with her supervisor. (Tr. 39-40, 44, 57, 83-84.)

         In 2012, Plaintiff began working at Pomonok Senior Center for four to five hours a day, three days a week. (Tr. 40-42.) Although she refers to this as "volunteer work, " she was compensated $230.00 every two weeks. (Tr. 40, 62.) By the time of the second hearing in 2014, Plaintiff was working two hours a day, two days a week. (Tr. 80.) She cited "too much stress" as the reason for reducing her time. (Tr. 81.) She was compensated $80.00 every two weeks for this activity. (Tr. 88.)

         Plaintiff lives alone in an apartment, and she takes care of herself on a daily basis. (Tr. 291-301.) She has no difficulty dressing, bathing, using the bathroom, feeding herself, or maintaining her appearance. (Tr. 292-93.) She prepares her own meals on a daily basis. (Tr. 293.) She cleans her own home, vacuums, does laundry, and shops for herself. (Tr. 43, 53, 294.) She goes outside three times a week. (Tr. 43, 294.) She can walk, use public transportation and drive a car. (Tr. 53-54, 294.) Her hobbies include reading and writing. (Tr. 295.) She has friends she talks to and meets regularly. (Tr. 54.) She attends church every week. (Tr. 43, 296.)

         In addition to depression and anxiety, Plaintiff testified that frequent migraine headaches prevent her from seeking and holding employment. (Tr. 44-45, 291.) These headaches are comorbid with her clinical diagnoses of depression and adjustment disorder. (Tr. 56, 348.) Together these reported impairments limit her ability to manage stress and to concentrate. (Tr. 314.) Her psychological condition, in part, stems from a history of domestic violence at the hands of her deceased husband. (Tr. 34-35, 82.) Plaintiff was hospitalized for a nervous breakdown in 1988, after her husband physically abused her and "almost killed" her. (Tr. 34-36, 99, 312.) In 1999, she was admitted to the emergency room at North Shore Hospital for a severe headache after reportedly losing consciousness. (Tr. 67-68, 312.) She testified that she experiences headaches two to three times per week and that they last for hours. (Tr. 45-46.) Sometimes a headache “knocks [her] down” and keeps her in bed although she could not say how often that happened. (Id.)

         At the continued hearing, Plaintiff stated she was taking medication for hypertension. Her left foot was swollen, limiting her ability to walk. (Tr. at 77.) She cut back her hours at the senior center because it was too stressful; she would get headaches and start “thinking about things that had happened in the past, ” including the abuse by her now deceased husband. (Tr. 80-82, 87-88, 99.)

         In her disability report, she indicated that she does not have any limitations associated with lifting, standing, walking, sitting, using stairs, kneeling, squatting, reaching, using her hands, seeing, hearing, or talking; she can follow spoken instructions, and written instructions, but that she did have trouble remembering things. (Tr. 296-99.)

         Peter Mansey, a vocational expert testified at the July 2, 2013 hearing. Based on the testimony of the psychological expert, Dr. Grant (see infra), he opined that Plaintiff could not do “her past relevant work because it was a skilled level.” Specifically, her prior work as “an administrator, social welfare” is “sedentary with a SVP of 8" and her work as a community trainer is “light with an SVP of 6.” Mr. Mansey stated he “would reduce her skill level to semiskilled, and also jobs that did not have . . . high pressure, or production quotas.” (Tr. at 60-61.) He testified that a number of jobs exist in the national economy that meet the criteria of moderately complex and low stress, including information clerk, receptionist, and calculating machine operator. (Tr. 62-64.)

         A different vocational expert, Stephen Davis, testified at the September hearing. After summarizing the testimony of Mr. Mansey, the ALJ asked Davis if assuming she could do light work, would she be able to perform any of her prior jobs. He responded, “[L]et me tell you what I came up with first because my jobs are a little bit different.” (Tr. at 107.) Davis categorized her prior work of “program director, case management” as “095.137-101, SVP 7" which is light, skilled and sedentary” and her “community worker” as “195.367-018, SVP 6, skilled, classified as light.” (Tr. at 107.) He opined that with residual functional capacity to do light or sedentary work, “she can definitely do the community worker” and “probably couldn't do” her past job as program director. (Tr. at 125.) He further testified that there are other jobs that she could perform for which there exist jobs and to which her skills are transferrable. (Tr. 125-127.) When questioned further as to why he ruled out program director he replied he relied on the “doctor's testimony . . . that she was not performing at - well below a college level person or what would be expected of a college level person.” When the psychological expert confirmed that there was nothing in the record to justify the referenced statement, Davis replied that “if that's the case, then she could do the program director job” given a RFC of moderately complex work that is moderately stressful. (Tr. 128-30.)

         B. Medical Evidence - Treating Sources[1]

         1. Dr. Ana Romeo

         Plaintiff's primary care physician is Dr. Ana Romeo, an internist. From April to June 2008, Dr. Romeo reported that her physical examination of Plaintiff - including neurological and spinal - were largely unremarkable. Plaintiff's weight was 247 and her blood pressure readings was 126/70 in June; her prior blood pressure readings in April and May were 130/70 and 126/82, respectively. Her electrocardiogram (“ECG”) was normal and her cholesterol was high. Dr. Romeo diagnosed obesity and dyslipidemia. (Tr. 492, 505-09.)

         In August 2008, Plaintiff complained of heart palpitations and dizziness. She weighed 250 pounds, her blood pressure was 130/70 and her ECG was normal. (TR. 510.) In February and March 2009, Dr. Romeo noted that Plaintiff's dyslipidemia and hypertension were controlled; she exhibited swelling in both legs and her blood pressure was 140/90 and 145/90 respectively. (Tr. 511-12.) In June 2009, Plaintiff's ECG was normal, her blood pressure 155/90 and her weight was 255. (Tr. 514.)

         According the record, Plaintiff did not see Dr. Romeo again until May 14, 2012. At that time, she weighed 264 and her blood pressure was 140/90. She was well kept and the physical examination finding were unremarkable. There were no motor or sensory deficits, no edema in the extremities and the neurological examination was normal. Laboratory results showed higher than normal cholesterol levels and an ECG revealed non-specific inferior abnormalities. Dr. Romeo diagnosed borderline blood pressure with no history of hypertension; obesity and a history of dyslipidemia. (Tr. 473-89.)

         On July 30, 2012, Plaintiff was seen by Dr. Romeo complaining of swelling in her ankles for a few days. She weighed 264 pounds and her blood pressure was 150/90. On examination, she appeared well kept, had normal affect and was fully orientated. Physical examination findings were unremarkable except for minimal non-pitting edema in the ankles with good distal pulses. There were no motor or sensory deficits. Dr Romeo diagnosed unspecified essential hypertension and mixed hyperlipidemia and recommended a low cholesterol diet, increased physical exercise for the mild ankle swelling, pressure stockings, and elevating the legs. She referred Plaintiff to a cardiologist and prescribed Avapro, Hydrochlorothiazide, Lipitor and aspirin for hypertension and lipid levels. (Tr. 474-75.)

         Dr. Romeo saw Plaintiff again on September 10, 2012. Her blood pressure was 130/80 and her weight was 266 pounds. Physical examination was unremarkable and Plaintiff was fully orientated, appeared well kept and had a normal affect. (Tr. 476.) An electrocardiogram conducted on September 22, 2012 revealed normal left ventricular function and wall motion, left ventricular filling pattern consistent with diastolic dysfunction, normal right ventricle with normal function, moderately dilated left atrium, normal right atrium, normal trileaflet aortic valve, mild to moderate mitral regurgitation, mild tricuspid regurgitation and physiologic pulmonic regurgitation. (Tr. 481.)

         Plaintiff saw Dr. Romeo on February 3, 2013 and complained of chest pain without palpitations a few days earlier and right shoulder pain of several months duration. She weighed 258 pounds and her blood pressure was 120/70. Physical examination was unremarkable except for pain in the right shoulder with reduced abduction and the neurological examination was normal. There were no motor or sensory deficits and no edema in the extremities. Dr. Romeo diagnosed unspecified essential hypertension and mixed hyperlipidemia, noting Plaintiff's hypertension was better controlled but her cholesterol was poorly controlled. An ECG was normal except for a late transition. She opined that Plaintiff had a possible right shoulder sprain or frozen shoulder syndrome. (Tr. 477-79.)

         Dr. Romeo completed a medical opinion questionnaire on August 29, 2014. She opined that Plaintiff would sit, stand, and/or walk for less than two hours in an eight hour day, could lift and carry less than ten pounds occasionally, required the ability to shift positions at will, needed to take unscheduled fifteen minute breaks every two hours, and needed to elevate her legs during prolonged sitting for up to 50% of the work day. Dr. Romeo indicated that Plaintiff had significant limitations in reaching, handling and fingering, could bend and twist 40 % of the day, could only occasionally twist, stoop, crouch, and climb, and needed “to avoid all environmental factors.” She opined that Plaintiff would be absent from work more than twice a month. (Tr. 515-17.)

         2. New York Hospital

         Plaintiff went to the emergency department of New York Hospital on October 31, 2012 complaining of an acute headache with some nausea. She reported that her previous headache had occurred two weeks earlier and rated her current pain as 3/10. Cardiovascular, neurological, psychological and musculosketal examinations were normal, as were a brain CT-scan and ECG. She was diagnosed with hypertension and migraine headaches. she received a morphine injection while at the hospital and was prescribed Acetaminophenoxycodone upon discharge. (Tr. at 439-64.)

         3. Denise Granda-Gilbert, Ph.D., Clinical Psychologist

         Dr. Granda-Gilbert completed a medical questionnaire on August 1, 2012 indicating that she treated Plaintiff from April 4, 2012 to May 16, 2012 and Plaintiff discontinued psychotherapy as she could not afford the co-pay and refused medication therapy. Dr. Granda-Gilbert listed her treating diagnoses as “309.28 - Adjustment Disorder with Mixed Emotional Features” with current symptoms consisting of anxiety, depression, insomnia, anhedonia and feelings of hopelessness, worthlessness and helplessness. She described Plaintiff's attitude and behavior as “anxious depressed, [and] exhibiting panic behavior, ” her speech, thought and perception as normal and her mood and affect as depressed and anxious. She further described Plaintiff's attention, concentration, and memory as disrupted due to depression, her insight as fair and her ability to perform calculations and serial sevens as average. In response to the inquiry as to Plaintiff's ability to function in a working setting, she wrote “P[atien]t would love to be employed!” She opined that based on her medical ...

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