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Nunez v. Colvin

United States District Court, S.D. New York

February 21, 2017

ELENA A. NUNEZ, Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security Defendant,

          CATHY SEIBEL, United States District Judge;

          REPORT AND RECOMMENDATION

          Paul E. Davison, U.S.M. J.

         I. INTRODUCTION

         Plaintiff Elena A. Nunez ("Plaintiff or "Claimant, ") brings this action pursuant to 42 U.S.C. § 405(g) challenging the Commissioner of Social Security's (the "Commissioner" or "Defendant") denial of Plaintiff s application for disability insurance benefits. Dkt. 18 at 1. The matter is before me pursuant to an Order of Reference entered September 24, 2015, Dkt. 12. Presently before this Court are the parties' cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, Diets. 18 (Plaintiffs motion), 19 (Plaintiffs memorandum of law in support ("PI. Br.")), 21 (Defendant's cross-motion), and 22 (Defendant's memorandum of law in opposition ("Def. Opp.")). For the reasons set forth below, I respectfully recommend that Defendant's motion be GRANTED, and that Plaintiffs motion be DENIED.

         II. BACKGROUND

         The following facts are taken from the Administrative Record ("R.") of the Social Security Administration, Dkt. 16, filed by Defendant in conjunction with her Answer to the Complaint. Dkt. 15.

         A. Application History

         On October 22, 2012, Plaintiff filed an application for Title XVI Supplemental Security Income ("SSI") alleging she was disabled beginning in June 29, 2010.[1] R, 16. Plaintiffs application was denied. R. 120. She requested a hearing before an Administrative Law Judge ("ALJ"), which was held on February 25, 2014 before ALJ Jerome Hornblass. R. 16, 30-39. On April 25, 2014, the ALJ issued a decision finding that Plaintiff was not disabled. R. 16-26. Plaintiff filed an appeal of the decision to the Appeals Council. R. 1-9. The ALJ's decision became final when the Appeals Council denied her request for review on May 14, 2015. R. 5, 10-15. Plaintiff timely filed this action on June 25, 2015. Dkt. 1.

         Plaintiff was born on September 24, 1967 in Santo Domingo, Dominican Republic. R. 25, 33. She is a naturalized U.S. citizen and has been in the United States at all times since September 22, 2012. R. 120. She was 45 years old when she filed for SSI on October 22, 2012. R. 16. She graduated from high school outside of the United States and worked in a factory from 1991-1992 and as a food preparer at a restaurant in 1999. R. 149-50, 201. Plaintiff alleges that she stopped working because she could not find childcare for her children. R. 149. At the time of filing, her son was twenty-one years old and her daughter was eleven years old. R. 32-33, 201. She cooks, shops twice a week, cleans twice a month, and does laundry once a month. R. 203, 206. Her daughter helps with the household chores. Id. She testified that her sister always accompanies her when she travels because she suffers from dizziness. R. 38-39. Depending on how Plaintiff is feeling, she socializes with others, watches TV or goes to appointments. R. 203, 206.

         B. Medical History

         The administrative record contains various medical treatment records. The following is a distillation of their relevant points.

         1. Diabetes and Peripheral Neuropathy

         Plaintiff was diagnosed with diabetes in 2009. R. 226. She does not take her insulin regularly nor does she monitor her glucose, diet or exercise regularly. R. 193, 229, 274, 282. As a result, she suffers from intermittent problems with her feet and fingers. R. 233-34, 237. Her glucose is often high, with hemoglobin A1C[2] ranging from 9.2% to 11%. R. 239, 240, 250. According to the American Diabetes Association ("ADA"), hemoglobin Al C over 6.5% is consistent with a diagnosis of diabetes. R. 239-40.

         a. Before the Relevant Period

         In June 2011, Plaintiff had x-rays to determine the cause of foot pain. R. 187. The x-ray showed "[n]o acute bony or articular abnormality, " nor any facture, or soft tissue swelling. R. 187. There was some indication that her left foot had a small heel osteophyte[3] and a small ossicle in the fifth toe. R. 187.

         In January 2012, Dr. William Jacobs of the AIM Metabolism Podiatry Clinic reported Plaintiff suffered from heel pain, which improved with physical therapy, plantar fissured skin, but showed no signs of pedal infection, R. 226-27. On January 20, 2012, Dr. Jacobs noted Plaintiffs history of GERD, [4] affective disorder, [5] incontinence, hypertension, [6]hypercholesterolemia, [7] diabetes, [8] and peripheral neuropathy.[9] R. 226-27. At that time, Plaintiff reported feeling "well, " but her blood sugars were high. R. 229. On February 29, 2012, Dr. Nicholas Fiebach, M.D., of Columbia Presbyterian Medical Center ("CPMC") noted that her "[f]oot symptoms improved with increased gabapentin, " but her diabetes was "[n]ot well controlled." R. 231. On May 29, 2012, Dr. Fiebach noted that she was "[g]enerally doing well, " but "acknowledge[d] sometimes (? often) forgetting to take evening insulin." R. 233-34. She had a fingertip infection that was improving and a non-tender nodule[10] that was "healed overlying small ulcer w/o erythema[11] or fluctuance." Id. In June 2012, she had "pain and swelling" on her finger with "[r]edness and swelling around nail bed, " and was diagnosed with paronychia and treated with topical medication. R. 235-37.

         On September 25, 2012, Plaintiff complained of an eight out often pain in her right foot and calf. R. 247-48. By then, the "[i]nfected fingertip [was] resolved" and she was "[g]enerally doing well, except that burning discomfort [in] both soles [was] worse, now also has aching discomfort dorsal arch and anterior ankle on right." R. 249. Dr. Fiebach's physical examination of Plaintiff showed "[b]oth feet warm, no deformity, non-tender, FROM [full range of motion], and [and] pedal pulses full and symmetric, " but the "distal sensation to standard monofilament [was] decreased." R. 250-51. Dr, Fiebach assessed her foot symptoms as "likely distal sensory neuropathy (and perhaps biomechanical strain on right)" and increased her gabapentin. Id. At that time, Dr. Fiebach found that Plaintiffs diabetes was still "[n]ot well controlled ... perhaps related to omission of second daily dose of insulin intermittently." Id.

         b. During the Relevant Period

         On November 1, 2012, Dr. Fiebach reported that Plaintiff had "several serious health problems, including major depression and diabetes with complications include peripheral neuropathy and requiring twice daily insulin injections" and opined that she was "partially disabled." R. 189, 200. By November 2012, Plaintiffs "[d]istal sensory neuropathy" had "[i]mproved on increased gabapentin, " and she reported no pain. R. 254-56. In December 2012, she complained of "constant fatigue and polyphagia" and reported that "she takes her insulin" but "is not doing much exercise since she is tired all the time." R. 263. Her insulin was increased, and she was encouraged to exercise and walk thirty minutes per day. R. 265. In January 2013, Plaintiffs medical records noted she did "not follow a DM diet (toast, coffee for bfast, chicken/meat with rice for dinner)" and "[s]nacks frequently at bedtime due to anxiety and often times has FS in 400s in the middle of the night." R. 268. Plaintiff checked her blood sugar in the morning regularly, but "does not check at any other times with any regularity." Id.

         In February 2013, Plaintiff reported no pain and that she was "[g]enerally well." R. 270. Dr. Fiebach noted that Plaintiff "[c]ontinues improved [sic] on increased gabapentin." R. 270-74. She had "[c]ontinued poor control" over diabetes "in context of progressive weight gain, " and "[a]dherence to rx and diet [is] uncertain, as is her capacity to adhere." R. 274. The clinic found that "[a]dherence and self-management of chronic diseases" was the "[c]ommon thread in managing her diabetes, hypertension, hyperlipidemia." R. 274. Additionally, "her psychosocial and family situations are stressful and challenge her capacity to manage her own health issues, " Id.

         2. Obesity

         a. During the Relevant Period

         On January 31, 2012, Plaintiff presented for readmission to the diabetes clinic. It was noted that changing Plaintiffs diet and eating healthier "will make the biggest impact in her DM care." R. 268. On February 7, 2012, Plaintiffs Body Mass. Index ("BMI")[12] was 36.6. R. 270. Dr. Fiebach noted that Plaintiff had unintentional weight change and an abnormal BMI. R. 275. On September 25, 2012, Plaintiffs BMI was 35.6. R. 248.

         In December 19, 2012, Plaintiffs BMI increased to 36.7. R. 262. At a follow-up for her uncontrolled diabetes, Plaintiff reported constant fatigue and polyphagia[13] and that she "understood the importance of loosing [sic] wt." R. 262-66. On February 22, 2013, Plaintiff was referred to "nutrition for better diet control." R. 277-78. On March 7, 2013, Plaintiffs BMI rose again to 38.3. R. 283. Plaintiffs case manager noted that Plaintiff had pervasively poor control over her diabetes and progressive weight gain from her diabetes, R. 279-82. On May 9, 2013, Plaintiffs BMI was 38.1. R. 283. Medical staff provided extensive counseling to Plaintiff about the harms of eating a second dinner and the consequences on Plaintiffs diabetes and anxiety/affective disorder. R. 283-288. On June 4, 2013, Dr. Fiebach noted that Plaintiffs diabetes was poorly controlled and that Plaintiff continued to eat a second dinner. R. 291.

          3. Depression and Anxiety

         a. Before the Relevant Period

          Plaintiff reported suffering from depression and anxiety her entire life. She said she received treatment for about a year and a half in the mid-2000s, R. 299, 325, and began treatment at the Metropolitan Center for Mental Health on July 19, 2011. R. 325. At an intake assessment, she "appeared a bit teary at times, " and "very anxious and somewhat guarded." R. 325. She "indicated that at times she wished she were dead out of loneliness" but "[n]o suicidal ideation was present." Id. She reported feelings of emptiness, sadness, irritability, low libido, anxiety, depression, and eating "out of anxiety and at times is unable to sleep." Id. On August 15, 2011, Plaintiff expressed to Dr. Nina Urban of CPMC that she suffered from lifelong depression and anxiety that had worsened in the past few years. R. 299. Dr. Urban diagnosed Plaintiff with Major Depressive Disorder. R. 299-301. Her symptoms were insomnia, "some decrease in concentration and memory, " tearfulness, significant anxiety with overeating, intermittent passive suicidal ideations without intent or plan, a prominent feeling of emptiness and loneliness, and feeling very sad, anxious, and stressed. R, 299, 324, 383, However, Plaintiff was well-groomed, well related, and mostly euthymic, [14] with fluent speech, stable affect, intact cognition, fair insight and judgment, coherent thought process, with no psychomotor retardation or agitation. R. 300-01. Dr. Urban diagnosed her with major depressive disorder with a Global Assessment of Functioning ("GAF")[15] score of 40/50. Id.

         In September 2011, Plaintiff reported "feeling mildly better on antidepressants" and that her mood was "better but not good, " but she was "more anxious, tense, w[ith] frequent crying spells. R. 323. Dr. Urban observed that Plaintiff "appeal-[ed] calmer in general (i.e. less unstable/dysphoric), " her affect was "initially bright, but quickly becomes severely tearful." Id. In October 2011, her mood had improved with a higher dose of antidepressants. R. 322. She had good eye contact and linear thought process, but restricted affect, poor sleep, thoughts of not wanting to live, and fatigue. R. 322. In November 2011, she had improvement in her symptoms and was "sleeping better, " but still had "occasional days of melancholy and anxiety." R. 321. She was well-groomed and had spontaneous speech, coherent thought process, euthymic mood, and an affect that was full, stable, and pleasant, but mildly anxious. Id. In January 20, 2012, Dr. Jacobs reported Plaintiffs personal history of affective disorder since October 20, 2009. R. 226.

         On January 23, 2012, Dr. Urban reported that Plaintiff was "feeling more depressed" for three days because of "more stress at home." R. 319. She said trazadone did not "help at all for sleep, " but she took Ativan once or twice a week with "good effect." Id. Plaintiff reported no other complaints. Id. In February 2012, Dr. Fiebach noted her affective disorder was "[s]table, compensated with ongoing psychiatric treatment." R. 231. In March 2012, Dr. Urban reported that Plaintiff was "generally doing better" but "still has intermittent anxiety but approximately only on a few days per week and trouble concentrating." R. 317. In June 2012, Plaintiff had been "doing well" and her "symptoms of depression are better." R. 315. On August 20, 2012, she reported "feeling overwhelmed w/fmancial stress which she feels is contributing to anxiety low mood." R. 313. She was fairly groomed, cooperative, and well-related and had an affect in the fair range, coherent thought process, and no psychomotor retardation. R, 313. In October 2012, Plaintiff said she was "doing ok." R. 312.

         b. During the Relevant Period

         On November 9, 2012, a social worker noted Plaintiff "appeared a bit disorganized and became tearful easily." R. 191. Around the same time, Dr, Fiebach noted that Plaintiffs "recent disorganization is worrisome." R. 256. On November 26, 2012, Plaintiff told Dr. Urban she was "overall feeling better" with "no acute complaints other than feeling more anxious over her recent application for disability as she is ambivalent about it." R. 311. She found "Ativan helpful, but not long lasting enough." Id. Dr. Urban observed that she had "mildly pressured speech and anxious affect when discussing SSD application, but overall euthymic" with "stable affect" and "spontaneous speech." Id.

         Plaintiff missed her appointment with Dr. Urban in January 2013, and in February 2013, she met with Dr. Evan Leibu who noted Plaintiffs worsening mood, energy, and anhedonia[16]and "continual difficulties [with] her disability application and subsequent financial difficulties." R. 309-10. She was concerned about weight gain with medication changes and reported increased appetite. Id. She was well dressed, her thought process was goal directed, and her judgment was fair. R. 309. Dr. Leibu prescribed Plaintiff Wellbutrin to address her symptoms. R. 309. On March 25, 2013, Plaintiffs Wellbutrin prescription was increased because her depressive state was exacerbated and her previous dosage had not adequately addressed her symptoms. R. 308. Upon examination, Plaintiff reported an improvement in her mood, "feeling better, " and had no acute complaints. R. 307. Dr. Urban found that Plaintiff exhibited an anxious effect and rambling speech, a depressive mood, low self-esteem, low level of functioning, and anxiety. R. 308. At this time, Dr. Urban assessed Plaintiffs GAF score to be at 54. R. 329. On May 15, 2013, Dr. Urban noted under Plaintiffs "Discharge Criteria" that she "needed to increase her level of functioning." R. 334. In June 2013, Dr. Fiebach observed that Plaintiff had "[n]ormal affect" and "seems to be coping better with family stressors." R. 291. On July 17, 2013, Dr. Urban reported that Plaintiff was feeling overall better since her medications were increased, but still occasionally felt sad, was mildly tearful at times, and was not sleeping well. R. 305. Dr. Urban increased Plaintiffs Ambien prescription. R. 305.

         C. Medical Source Statements and Consultative Examinations

         1. Treating Psychiatrist, Dr. Nina Urban

         Dr. Nina Urban completed two medical source statements, first in February 2013, and then in February 2014. R. 220, 389. In both of Dr. Urban's Medical Source Statements, Dr. Urban reported that Plaintiff was diagnosed with Major Depressive Disorder, suffered from generalized persistent anxiety and that Plaintiff would have marked or extreme limitations in understanding and remembering detailed instructions, maintaining attention and concentration for extended periods, and working in coordination with others without being unduly distracted. R. 214-218 (2013 Medical Source Statement), 385-389 (2014 Medical Source Statement). In her February 20, 2013 medical source statement, Dr. Urban identified her treating diagnoses as major depressive disorder and generalized anxiety disorder and assessed Plaintiffs GAF at 54. R. 214-20. Dr. Urban noted that she prescribed Celexa, Wellbutrin, Ambien, and Klonopin to treat Plaintiff, who reported no side effects. R. 221. Dr. Urban reported that Plaintiff suffered from: poor memory, appetite disturbance with weight change, sleep disturbance, emotional lability, [17] anhedonia, psychomotor agitation or retardation, feelings of guilt/worthlessness, difficulty thinking or concentrating, social withdrawal or isolation, decreased energy, intrusive recollections of traumatic experience, persistent irrational fears generalized persistent anxiety, and pathological dependence or passivity. R. 220. When asked to describe the clinical findings that demonstrated the severity of Plaintiff s mental impairment and symptoms, Dr. Urban referred only to the "intake psychiatric evaluation." R. 221.

         Dr. Urban opined that Plaintiff has either extreme or marked loss in seventeen work-related areas. R. 222-24. In particular, Dr. Urban opined that Plaintiff would have marked limitations in activities of daily living, marked difficulties in maintaining social functioning, constant deficiencies of concentration, persistence or pace resulting in failure to complete tasks in a timely manner (in work settings or elsewhere), and continual episodes of deterioration or decompensation in work or work-like settings, which cause the individual to withdraw from that situation or to experience exacerbation of signs and symptoms, which may include deterioration of adaptive behaviors. R. 222-23. She opined that Plaintiff had (1) extreme loss in her ability to remember locations and procedures, understand, remember, and carry out detailed instructions, maintain attention and concentration, deal with the stress of semi-skilled and skilled work, perform at a consistent pace, make simple decisions, respond to changes in a routine work setting, and complete a normal workday or week, (2) marked loss in her ability to sustain ordinary routine, accept instructions and criticism, maintain regular attendance and be punctual, work in coordination with or proximity to others, and be aware of hazards, and (3) moderate loss in her ability to understand, remember, and carry out very short, simple instructions, get along with others, interact with the public, maintain socially appropriate behavior, adhere to basic standards of neatness, travel in unfamiliar places, and use public transportation. Id. Dr. Urban opined these restrictions had been present since 2003, eight years before she began treating Plaintiff. R. 224.

         On February 19, 2014, Dr. Urban completed a second, substantially similar medical source statement that again opined that Plaintiff had moderate to extreme limitations in all work-related activities with a GAF score of 54. R. 385-89. Dr. Urban reported that Plaintiff suffered from: poor memory, appetite disturbance with weight change, sleep disturbance, and emotional lability. For clinical findings that reflected the severity of Plaintiff s impairments, Dr. Urban referred to her mental status examinations and the intake examination. R. 386.

         2. Consultative Psychologist, Dr. Michael Kushner

         On December 20, 2012, Dr. Michael Kushner, Ph.D., conducted a psychiatric consultative examination of Plaintiff, who reported symptoms of bone pain, difficulty falling asleep, short-term memory problems, increased appetite, depressive mood, crying spells, a great deal of sadness, and feelings of emptiness and uselessness, but denied any suicidal ideation. R. 201-204. Upon examination, Plaintiffs mood was dysthymic, [18] and her affect was depressed. Dr. Kushner found that Plaintiffs recent and remote memory skills were mildly impaired. Plaintiff was only able to recall two out of three items after five minutes, and could not repeat any digits backwards. Id. Dr. Kushner opined that her intellectual functioning was below average, and her general fund of information was somewhat limited. R. 203. Her motor behavior was normal, her eye contact was appropriate, her attention and concentration were intact, and her judgment was good, although her mood was dysthymic, her affect was depressed, and her memory skills were mildly impaired. R. 202.

         Dr. Kushner diagnosed Plaintiff with depressive disorder and opined that she could learn new tasks, follow and understand simple directions and instructions, perform simple tasks independently, maintain attention and concentration, maintain a regular schedule, and make appropriate decisions. R. 203-04. He opined that her "[p]rognosis is fair" and she "may be able to perform complex tasks under supervision, " but her "ability to relate adequately with others and appropriately deal with stress may be impaired by psychiatric problems and her psychiatric problems "may significantly interfere with the claimant's ability to function on a daily basis." R. 204. It was recommended that Plaintiff continue her psychological and psychiatric treatment as currently provided, R. 201-204. Plaintiffs medications at the time of this examination included Citalporam, Zolpidem, Lorazepam, Ramipril, Hydrochlorothiazide, Novolog, FlexPen, Metformin, Gabapentin, and Crestor. R. 201-204.

          3. Consultative Internal Medicine Examiner, Dr. Shannon Gearhart

         On December 20, 2012, Dr. Shannon Gearhart examined Plaintiff and found that Plaintiff was 58 inches tall and weighed 180 pounds and suffered from diabetes, and neuropathy with numbness in her left. R. 205-08. Plaintiff reported bilateral shoulder, bilateral knee, and bilateral foot pain, for which she received physical therapy with minimal relief. Id. Her pain was exacerbated by moving her arms and was most pronounced with prolonged sitting or walking more than five block at a time. Id. She denied weakness in her limbs but gets fatigued easily. Id.

         Dr. Gearhart opined that Plaintiff has moderate restrictions for: heavy lifting, carrying, squatting, kneeling, climbing, and going up and down stairs. R. 205-208. During her physical exam, Plaintiff had a normal gait, and could walk on her heels and toes without difficulty. R. 206. She had full range of motion in her ankles, knees, and shoulders, with mild limitations in her lumbar and hip movement and stable joints with no redness, heat, swelling, or effusion, but had tenderness in her shoulders. R. 207-08. She had no sensory deficits in her extremities and intact hand and finger dexterity. R. 207-08.

         Dr. Gearhart diagnosed Plaintiff with diabetes, neuropathy, hypertension, foot, knee, and shoulder pain, depression, and anxiety with "moderate restrictions for heavy lifting, carrying, squatting, kneeling, climbing, and going up and down stairs, " "mild to moderate restrictions for prolonged walking and standing, " and "mild restrictions for prolonged sitting." Plaintiffs medications at the time of Dr. Gearharfs exam included Citalopram, Zolpidem, Lorazepam, Ramipril, Hydrochlorothiazide, Novolog Flex Pen, Metformin, Gabapentin and Cretor. R. 205-06.

         D. Plaintiffs Hearing Testimony

         On February 25, 2014, Plaintiff testified with the aid of a Spanish interpreter before ALJ Homblass in New York, New York. R. 30-39. She was 46 years old at the time of the hearing. R. 34, Plaintiff testified that she was bom in Santa Domingo, Dominican Republic. R. 33-34. Plaintiff testified that she was living with her children who she supports with food stamps and child support. R. 32-34. Plaintiff testified that her daughter helps her get dressed because she cannot do it herself. R. 33-34, Similarly, Plaintiff testified that her sister accompanies her whenever she travels. R. 37. Plaintiff testified that she takes her insulin twice a day to control her diabetes. R. 35-36. Plaintiff testified that on bad days she feels tired, her body aches, and she feels dizzy. R. 34-36. Plaintiff testified that she could not work due to these symptoms. R. 35-36. On the topic of her physical impairments, Plaintiff testified about her inability to stand for more than ten to fifteen minutes at a time, cramps, itchiness, body aches, dizziness, nausea, pain in her hands and feet, stomach pain, and being "always tired." R. 35-36. On the topic of her mental impairments, Plaintiff testified that her depression made her lose focus, feel sad, isolate herself, and cry often. R. 36-37. In response to the ALJ's questions about medications, Plaintiff reported that she was experiencing nausea, dizziness, stomach pain, and tiredness as side effects of her medication. Id.

         III. LEGAL STANDARDS

         A. Stand ...


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