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Maldonado v. Colvin

United States District Court, S.D. New York

February 28, 2017

JASON MALDONADO, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION AND ORDER

          HENRY PITMAN, United States Magistrate Judge

         I. Introduction

         Plaintiff Jason Maldonado brings this action pursuant to Section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security (the "Commissioner") denying his application for supplemental security income ("SSI"). The parties have consented to my exercising plenary jurisdiction pursuant to 28 U.S.C. § 636(c). Plaintiff and the Commissioner have both moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, plaintiff's motion (Docket Item ("D.I.") 11) is granted and the Commissioner's motion (D.I. 14) is denied.

         II. Facts[1]

         A. Procedural Background

         Plaintiff filed an application for SSI on June 12, 2012, alleging that he had been disabled since December 1, 2011 (Tr. 70, 141-49). Plaintiff completed a "Disability Report" in support of his claim for benefits (Tr. 158-66). Plaintiff claimed that he was disabled due to bipolar disorder, an anxiety disorder, schizophrenia, depression and a lower back condition (Tr. 159). Plaintiff reported that he took the following medications: Abilify and Seroquel for schizophrenia, Ambien for insomnia, Atarax and Ativan for anxiety, Lexapro for anxiety and depression, Trazodone for depression and Oxycodone for back pain (Tr. 162). Plaintiff also reported that he received psychological therapy and physical therapy for his conditions (Tr. 163).

         On September 26, 2012, the Social Security Administration (the "SSA") denied plaintiff's application, finding that he was not disabled (Tr. 71-76). Plaintiff timely requested and was granted a hearing before an Administrative Law Judge (an "ALJ") (Tr. 77-79). ALJ Michael Friedman held a hearing on September 27, 2013 (Tr. 32-45). The ALJ reviewed the claim de novo and, in a decision dated December 6, 2013, determined that plaintiff was not disabled within the meaning of the Act from June 12, 2012 to the date of the decision (Tr. 12-26). The ALJ's decision denying benefits became final on March 27, 2015 when the Appeals Council denied plaintiff's request for review (Tr. 1-4). Plaintiff commenced this action on May 26, 2015 seeking review of the Commissioner's decision (Complaint, filed May 26, 2015 (D.I. 1)).

         B. Plaintiff's Social Background

         Plaintiff was born in 1978 and was 34 years old at the time he filed his application for SSI (Tr. 155). He has an eighth grade education (Tr. 160) and previously worked as a barber's apprentice (Tr. 160-61). He never worked for more than a few months at a time (Tr. 35, 160-61).

         At his hearing before the ALJ, plaintiff testified that he was homeless and moved around from place to place (Tr. 34-35). He was staying with his cousin at the time of the hearing (Tr. 34). Plaintiff further testified that his cousin helped him with grocery shopping because he was "very bad with prices and stuff, handling money" (Tr. 37-38).

         Plaintiff also testified that he had limited cooking skills, cleaned "[b]asic things, " enjoyed watching television and smoked one pack of cigarettes per day (Tr. 38). Plaintiff also stated that he stopped using drugs about three years prior to the hearing and had one relapse (Tr. 39).

         C. Plaintiff's Medical Background

         1. Physical Health Treatment Records

         a. AllMed and Rehabilitation of New York

         Dr. Michael Pierce, M.D., evaluated plaintiff on May 7, 2012 (Tr. 498). Plaintiff reported that he had chronic back pain as a result of a fall from a ladder in 2005 (Tr. 498). Plaintiff also reported that his pain was moderate and intermittent and that it was aggravated by bending and sitting (Tr. 498). Dr. Pierce noted that plaintiff walked with a cane and that plaintiff had a history of opioid dependence, for which plaintiff participated in a methadone maintenance treatment program (Tr. 498, 500). A physical examination of plaintiff did not reveal any abnormal findings (Tr. 500-01). Dr. Pierce diagnosed plaintiff with opioid dependence, which was being treated by a methadone maintenance treatment program, a back contusion, tobacco abuse and a chronic Hepatitis C infection (Tr. 501-02). Dr. Pierce referred plaintiff for pain management (Tr. 502).

         Plaintiff returned to Dr. Pierce on May 16, 2012 with complaints of low back pain that radiated to his right leg (Tr. 546). An examination revealed pain with forward flexion (Tr. 546). Dr. Pierce again diagnosed plaintiff with opioid dependence, which was being treated by a methadone maintenance treatment program,, a chronic Hepatitis C infection, chronic back pain and a lumbar contusion (Tr. 546). Dr. Pierce prescribed Percocet (Tr. 546).

         On June 7, 2012, Dr. Pierce noted that plaintiff walked with a cane and that he had chronic low back pain that radiated to the right leg (Tr. 543). Dr. Pierce increased plaintiff's dosage of Percocet and ordered a urine toxicology screening (Tr. 543). Four weeks later, Dr. Pierce noted that plaintiff's urine test was positive for "opiate" and "meth" (Tr. 621). Dr. Pierce diagnosed plaintiff with opioid dependence, which was being treated by a methadone maintenance treatment program, cocaine abuse that was in remission, a lumbar contusion and a chronic hepatitis C infection (Tr. 621).

         On July 25, 2012, pain management specialist Dr. Henry Sardar, D.O., examined plaintiff (Tr. 551-52). Dr. Sardar observed that plaintiff walked with a cane and with a slow gait and that plaintiff had difficulties standing and walking without an assistive device (Tr. 551). Dr. Sardar's examination of plaintiff revealed a decreased range of lumbar spinal motion in all planes, particularly with flexion and extension and with pain reported at the end range, significant spasm, taut muscle bands, tenderness to palpation over the lumbar paraspinal region bilaterally and "weakness to [the] right [leg] with 4/5" (Tr. 551). The cervical spine had a normal range of motion and plaintiff's arms were normal (Tr. 551). Dr. Sardar diagnosed plaintiff with myalgia, [2] muscle spasm, low back pain, right leg pain, gait dysfunction, difficulty walking, opioid dependence and chronic pain syndrome (Tr. 551). Dr. Sardar prescribed Flexeril, Emla cream, Percocet and physical therapy (Tr. 552). Dr. Sardar also administered an injection of Depo-Medrol and lidocaine to the right sacroiliac joint (Tr. 552).

         On August 1, 2012, Dr. Pierce noted that plaintiff walked with a cane and that forward flexion was painful (Tr. 509). He diagnosed plaintiff with chronic low back pain syndrome, opioid dependence, which was being treated by a methadone maintenance treatment program, and a chronic hepatitis C infection (Tr. 509). Dr. Pierce also renewed plaintiff's prescription for Percocet (Tr. 509). Dr. Pierce saw plaintiff again on August 28, 2012 for chronic back pain (Tr. 504). Dr. Pierce again noted that forward flexion was painful (Tr. 504). He also noted that plaintiff's urine tested positive for oxycodone (Tr. 504). Dr. Pierce diagnosed plaintiff with a lumbar contusion and opioid dependence, and he continued to prescribe Percocet to plaintiff (Tr. 504).

         Plaintiff returned to Dr. Sardar on September 27, 2012 for chronic low back pain (Tr. 657-58). Plaintiff's pain radiated to his right leg, and the pain was accompanied by numbness and tingling (Tr. 657). Plaintiff also reported that his lower back pain was an average of seven on a scale of one to ten (Tr. 657). Plaintiff also stated that his medications were not effective (Tr. 657). An examination of the lumbar spine revealed a decreased range of motion in all planes, particularly with flexion and extension and with pain reported at the end range, significant spasm, taut muscle bands, tenderness to palpation over the lumbar paraspinal region bilaterally and "weakness to [the] right [leg] with 4/5" (Tr. 657). Dr. Sardar diagnosed plaintiff with myalgia, low back pain, right leg pain, gait dysfunction, difficulty walking, opioid dependence and chronic pain syndrome (Tr. 657). Dr. Sardar recommended plaintiff for further physical therapy (Tr. 657).

         Dr. Sardar examined plaintiff again on October 22, 2012 (Tr. 653-54). Dr. Sardar noted that plaintiff's pain medications provided satisfactory relief, although plaintiff reported that his back pain on average was a seven on a scale of one to ten (Tr. 653). On examination, the lumbar spine had a decreased range of motion in all planes, particularly with flexion and extension and with pain reported at the end range (Tr. 653). Dr. Sardar also noted that plaintiff had significant spasm, taut muscle bands and tenderness to palpation over the lumbar paraspinal region bilaterally (Tr. 653). Dr. Sardar diagnosed plaintiff with myalgia, muscle spasm, low back pain, pain in limb, gait dysfunction, difficulty walking, opioid dependence and chronic pain syndrome (Tr. 653). Dr. Sardar recommended continued physical therapy, and he ordered magnetic resonance imaging ("MRI") of plaintiff's lumbar spine (Tr. 653).

         Dr. Pierce saw plaintiff on October 23, 2012 (Tr. 604). He noted that plaintiff had chronic low back pain, with pain now radiating to the left leg (Tr. 604). Dr. Pierce also noted that plaintiff walked with a cane and had slightly decreased right leg strength and normal left leg strength (Tr. 604). An examination revealed that plaintiff's lumbar range of motion was limited to sixty degrees in forward flexion and a straight-leg-raise test was positive on the right side (Tr. 604).[3] Dr. Pierce diagnosed plaintiff with opioid dependence, which was being treated by a methadone maintenance treatment program,, lumbar radiculopathy, a chronic hepatitis C infection and lumbar contusion (Tr. 604). An October 31, 2012 MRI of the lumbar spine revealed significant intervertebral disc narrowing and suggested degenerative disc disease (Tr. 652). There was no significant disc protrusion or neural compromise at the T12 to S1 levels (Tr. 652).

         Dr. Pierce saw plaintiff again on November 20, 2012 (Tr. 602). That examination again revealed that a straight-leg-raise test was positive on the right side (Tr. 602). Dr. Pierce noted that x-rays of the lumbar spine revealed sacralization[4](Tr. 602). Dr. Pierce diagnosed plaintiff with opioid dependence, which was being treated by a methadone maintenance treatment program, and lumbar radiculitis[5] (Tr. 602).

         Dr. Pierce examined plaintiff on February 19, 2013 (Tr. 699). The examination conducted on that date again revealed that a straight-leg-raise test was positive on the right side (Tr. 699). Dr. Pierce diagnosed plaintiff with lumbar radiculopathy and opioid and tobacco dependence (Tr. 699).

         Plaintiff returned to Dr. Pierce on April 10, 2013 (Tr. 696). Dr. Pierce again noted that plaintiff walked with a cane and his examination revealed that a straight-leg-raise test was positive on the right side (Tr. 696). Plaintiff also told Dr. Pierce that he could not work because he was unable to lift heavy items and he experienced unrelenting low back pain when he stood for prolonged periods (Tr. 696). Dr. Pierce diagnosed plaintiff with opioid dependence, which was being treated by a methadone maintenance treatment program, lumbar radiculopathy, lumbar contusion, tobacco abuse and a chronic hepatitis C infection (Tr. 696).

         Dr. Pierce also completed a Multiple Impairment Questionnaire on April 10, 2013 (Tr. 901-08). Dr. Pierce noted that he had treated plaintiff on a monthly basis since May 16, 2012 for lumbar contusion and lumbar radiculopathy (Tr. 901). Dr. Pierce noted that plaintiff's primary symptom was constant low back pain that radiated to the right leg, precipitated by prolonged standing and walking (Tr. 902-03).

         Dr. Pierce opined that plaintiff could sit for three hours total and stand/walk for two hours total in an eight-hour workday (Tr. 903). Dr. Pierce noted that plaintiff had to get up and move around for five to ten minutes once an hour when sitting (Tr. 903-04). He opined that it would be necessary or medically recommended that plaintiff not sit or stand/walk continuously in a work setting (Tr. 903-04). Additionally, Dr. Pierce believed that plaintiff could lift/carry up to ten pounds occasionally and that plaintiff had significant limitations in performing repetitive reaching, handling, fingering or lifting (Tr. 904). Dr. Pierce cited the October 31, 2012 MRI of plaintiff's lumbar spine in support of his diagnoses, as well as a positive right femoral stretch sign (Tr. 901-02).[6]

         Dr. Pierce opined that plaintiff's symptoms would likely increase if he were placed in a competitive work environment (Tr. 905). He also noted that plaintiff's symptoms were frequently severe enough to interfere with his attention and concentration (Tr. 906). Finally, Dr. Pierce noted that plain- tiff was capable of moderate stress and that plaintiff would likely be absent from work more than three times per month due to his impairments (Tr. 906-07).

         b. Dr. Catherine Pelczar-Wissner, M.D.

         At the request of the SSA, Dr. Catherine Pelczar-Wissner performed a physical consultative examination of plaintiff on August 28, 2012 (Tr. 567-70). Plaintiff complained of back pain (Tr. 567). He also stated that he cleaned, did laundry, listened to the radio, shopped, showered and dressed "when he [got] a chance" (Tr. 568).

         Dr. Pelczar-Wissner observed that plaintiff walked into the exam room with a very wide gait with a cane (Tr. 568). Dr. Pelczar-Wissner indicated that plaintiff subsequently walked around with a slow, but normal, gait and that he was able to walk without the cane (Tr. 568). Plaintiff was able to walk a few steps on his heels and toes, and then his gait became wide again once he started using the cane (Tr. 568). In addition, plaintiff could squat only halfway (Tr. 568). Plaintiff did not need help changing for the examination or getting on and off the table, and he was able to rise from a chair without difficulty (Tr. 568). Dr. Pelczar-Wissner did not believe plaintiff's cane was medically necessary (Tr. 568).

         Dr. Pelczar-Wissner's examination of plaintiff's cervical spine showed full flexion, extension, lateral flexion bilaterally and rotary movement bilaterally (Tr. 569). Additionally, straight-leg-raise testing was negative for both legs and the range of motion in plaintiff's lumbar spine was zero to sixty degrees (Tr. 569). Plaintiff's arms and legs all had a full range of motion, his joints were stable and nontender and his deep tendon reflexes were normal and equal in all extremities (Tr. 569). Plaintiff did not have any sensory deficits or muscle atrophy, and he had full strength in all extremities (Tr. 569). An x-ray of the lumbar spine was also negative (Tr. 569). Dr. Pelczar-Wissner diagnosed plaintiff with complaints of low back pain and a "history of substance abuse, on methadone since 2011 and off heroin since then" (Tr. 570). She also opined that plaintiff had a mild restriction for heavy lifting and carrying (Tr. 570).

         2. Mental Health Treatment Records

         a. Dr. Edward Fruitman, M.D.[7]

         Dr. Pierce referred plaintiff to a psychiatrist, Dr. Edward Fruitman, M.D., and plaintiff's treatment with Dr. Fruitm-an began on May 30, 2012 for bipolar disorder (Tr. 544). During an appointment on June 12, 2012, plaintiff stated that he had mood swings and felt paranoid and nervous around people (Tr. 541-42). Plaintiff also stated that he had had prior psychiatric treatment for bipolar disorder (Tr. 541). Dr. Fruitman noted that plaintiff was shaking back and forth during the appointment, and he diagnosed plaintiff with "bipolar I disorder, most recent episode (or current) depressed, severe, without mention of psychotic behavior" (296.53) and "bipolar I disorder, most recent episode (or current) unspecified" (296.70) (Tr. 541).

         Dr. Fruitman completed a Psychosocial Assessment on July 2, 2012 (Tr. 491). According to this report, plaintiff was experiencing sadness, depression, severe insomnia, mood swings, auditory hallucinations, nervousness and paranoia around large crowds (Tr. 491). Dr. Fruitman noted that plaintiff's legs were shaking and that "he was extremely anxious" (Tr. 492). Dr. Fruitman also reported that plaintiff was oriented to time, place and person, had good eye contact and was able to understand questions posed to him (Tr. 492). Further, plaintiff was pleasant and did not demonstrate psychotic symptoms (Tr. 492). Dr. Fruitman's examination also revealed a labile and broad affect and psychomotor agitation (Tr. 492). Plaintiff denied any current hallucinations because they were controlled by medication (Tr. 492). Plaintiff's memory did not appear to be impaired; additionally, plaintiff's judgment and impulse control were adequate, his speech, rate and tone were normal and his speech was fluent and goal-directed (Tr. 492-93). Moreover, plaintiff was able to focus on tasks (Tr. 493). Dr. Fruitman diagnosed plaintiff with bipolar disorder and a history of polysubstance abuse that was in remission (Tr. 493). Dr. Fruitman rated plaintiff's Global Assessment of Functioning ("GAF") score as 68, indicating mild symptoms (Tr. 493).[8] Dr. Fruitman noted that plaintiff's mood changes had been evident in counseling sessions and that plaintiff needed to continue taking medication and attending psychotherapy (Tr. 493).

         Plaintiff saw Dr. Fruitman for a follow-up appointment on July 24, 2012 (Tr. 511). Plaintiff stated that he continued to have mood swings, but that he was "doing ok" (Tr. 511). Dr. Fruitman noted that plaintiff was dressed appropriately and that he had been taking his medication (Tr. 511).

         In a letter dated August 7, 2012, Dr. Fruitman reported that he was treating plaintiff for bipolar disorder (Tr. 495). According to the letter, plaintiff felt he could not work because he was irritable and easily agitated and was anxious being around people (Tr. 495). Additionally, plaintiff stated he had poor concentration and had frequent panic attacks (Tr. 495). Dr. Fruitman reported that plaintiff was restless in their sessions and that plaintiff appeared to have frequent mood changes (Tr. 495). Dr. Fruitman opined that plaintiff did not appear to be able to concentrate sufficiently to work (Tr. 495).

         In a follow-up appointment on August 8, 2012, Dr. Fruitman reported that plaintiff was not exhibiting symptoms of psychosis or mania and was doing well on medication (Tr. 506-07). Dr. Fruitman diagnosed plaintiff with bipolar disorder, single manic episode, unspecified (Tr. 507). On August 21, 2012, Dr. Fruitman noted that although plaintiff was taking his medication, plaintiff still felt nervous and overactive (Tr. 613).

         Dr. Fruitman completed a report on September 18, 2012 at the request of the SSA (Tr. 572-78). Dr. Fruitman reported that he had been treating plaintiff once a month since May 30, 2012 for bipolar disorder (Tr. 572). He also reported that plaintiff's symptoms included mood swings, anger, anxiety, avoidance of large crowds and easy irritability (Tr. 572). According to the report, plaintiff did not like to work with people, and plaintiff stated that he got into arguments easily (Tr. 576). Plaintiff's GAF score was 50, indicating serious symptoms; a mental status examination revealed stuttering speech, an anxious or hyper mood and nervousness (Tr. 574-75). Dr. Fruitman opined that plaintiff could not deal with much stress and became "verbally explosive" due to poor coping skills (Tr. 576). Dr. Fruitman also opined that plaintiff had a slightly impaired memory and that he lost concentration when given multiple tasks (Tr. 577). Dr. Fruitman stated that plaintiff was limited in his ability to interact socially because he did not respond well to large crowds (Tr. 577).

         On October 3, 2012, Dr. Fruitman noted that plaintiff was feeling better and that his mood had improved with medication (Tr. 607). In a letter dated October 17, 2012, Dr. Fruitman noted that plaintiff suffered from bipolar disorder (Tr. 606). Dr. Fruitman also indicated that plaintiff's medications made plaintiff drowsy and that plaintiff continued to attend monthly appointments with both a psychiatrist and psychotherapist (Tr. 606). According to the letter, plaintiff reported that he could not work because of difficulty taking directions, easy agitation, frequent anxiety attacks and an inability to be around people (Tr. 606).

         On October 24, 2012, plaintiff reported to Dr. Fruitman that his mood and insomnia were improving (Tr. 603). However, a few weeks after that, on November 7, 2012, Dr. Fruitman noted that plaintiff appeared sullen and depressed and was "not the same as before" (Tr. 599). On December 5, 2012, plaintiff reported that he was feeling "ok" and that his insomnia and mood improved with medication, with no side effects reported (Tr. 600). However, on December 11, 2012, plaintiff informed Dr. Fruitman that he had "problems (didn't want to share)" and that he felt paranoid (Tr. 705). Dr. Fruitman also noted plaintiff's depressed mood (Tr. 705). On January 4, 2013, plaintiff followed up with Dr. Fruitman for a medication refill (Tr. 704). Plaintiff reported at that time that he was "doing ok, " but that he was still experiencing depressive symptoms (Tr. 704).

         Dr. Fruitman completed a Psychiatric/Psychological Impairment Questionnaire on January 8, 2013, covering the period from May 30, 2012 to January 4, 2013[9] (Tr. 683-90). Dr. Fruitman diagnosed plaintiff with bipolar disorder (Tr. 683). In addition, Dr. Fruitman noted that plaintiff's GAF score was 50, indicating serious symptoms, and his highest GAF score over the past seven months was 55, indicating moderate symptoms (Tr. 683). Dr. Fruitman reported that plaintiff responded to treatment, but was still suffering from mood swings (Tr. 683). Dr. Fruitman found that plaintiff suffered from poor memory, sleep disturbance, recurrent panic attacks, social withdrawal or isolation, decreased energy, manic syndrome, generalized persistent anxiety and hostility or irritability (Tr. 684). Plaintiff's primary symptoms were mood swings with hyperactivity at times and depression at other times (Tr. 685).

         Dr. Fruitman opined that plaintiff was markedly limited in his ability to: (1) understand and remember detailed instructions; (2) carry out detailed instructions; (3) maintain attention and concentration for extended periods; (4) perform activities within a schedule, maintain regular attendance and be punctual within customary tolerance; (5) sustain ordinary routine without supervision; (6) work in coordination with or proximity to others without being distracted by them; (7) complete a normal workweek without interruptions from psychologically-based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; (8) interact appropriately with the general public; (9) accept instructions and respond appropriately to criticism from supervisors; (10) get along with co-workers or peers without distracting them or exhibiting behavioral extremes and (11) respond appropriately to changes in the work setting (Tr. 686-87). Dr. Fruitman also opined that plaintiff had mild limitations in his ability to: (1) remember locations and work-like procedures; (2) understand and remember one- or two-step instructions; (3) carry out simple one- or two-step instructions; (4) travel to unfamiliar places or use public transportation and (5) set realistic goals or make plans independently (Tr. 686-88). Finally, Dr. Fruitman opined that there was no evidence of a limitation in plaintiff's ability to: (1) make simple work-related decisions; (2) ask simple questions or request assistance; (3) maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness and (4) be aware of normal hazards and take appropriate precautions (Tr. 687-88). Dr. Fruitman also opined that plaintiff was incapable of tolerating "even 'low stress'" work (Tr. 689). According to Dr. Fruitman, plaintiff would likely be absent from work two to three times a month (Tr. 690).

         Dr. Fruitman completed another Psychiatric / Psychological Impairment Questionnaire on January 29, 2013, covering the period from June 12, 2012 to January 4, 2013 (Tr. 674-81). Dr. Fruitman diagnosed plaintiff with bipolar disorder (Tr. 674). Plaintiff's GAF score was 60, indicating moderate symptoms, and his highest GAF score during that seven-month period was 68, indicating mild symptoms (Tr. 674). Dr. Fruitman reported that plaintiff was responding to treatment (Tr. 674). Dr. Fruitman found that plaintiff suffered from frequent mood swings, poor memory, mood disturbance, recurrent panic attacks, difficulty thinking or concentrating, decreased energy, generalized persistent anxiety and irritability (Tr. 674-75). Plaintiff's primary symptoms were mood swings, periods of irritability and insomnia (Tr. 676).

         Dr. Fruitman opined that plaintiff had marked limitations in his ability to: (1) understand and remember detailed instructions; (2) carry out detailed instructions; (3) maintain attention and concentration for extended periods; (4) sustain ordinary routine without supervision; (5) work in coordination with or proximity to others without being distracted by them; (6) complete a normal workweek without interruptions from psychologically-based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods and (7) accept instructions and respond appropriately to criticism from supervisors (Tr. 677-78). Dr. Fruitman also opined that plaintiff had moderate limitations in his ability to: (1) perform activities within a schedule, maintain regular attendance and be punctual within customary tolerance; (2) interact appropriately with the general public; (3) get along with co-workers or peers without distracting them or exhibiting behavioral extremes; (4) respond appropriately to changes in the work setting and (5) set realistic goals or make plans independently (Tr. 677-79). Dr. Fruitman opined that plaintiff had mild limitations in his ability to: (1) remember locations and worklike procedures; (2) understand and remember one- or two-step instructions; (3) carry out simple one- or two-step instructions; (4) make simple work-related decisions; (5) maintain socially appropriate behavior and (6) travel to unfamiliar places or use public transportation (Tr. 677-79). Finally, Dr. Fruitman opined that there was no evidence of a limitation in plaintiff's ability to: (1) ask simple questions or request assistance; (2) adhere to basic standards of neatness and cleanliness and (3) be aware of normal hazards and take appropriate precautions (Tr. 678-79).

         Dr. Fruitman noted that plaintiff did not respond well to criticism, that he could not remember detailed information and that he had poor concentration (Tr. 677-78). According to Dr. Fruitman, plaintiff was incapable of "even 'low stress'" work and would likely be absent from work two to three times a month (Tr. 680-81).

         Plaintiff saw Dr. Fruitman on February 26, 2013 (Tr. 698). At that time, plaintiff stated that he felt overwhelmed and frustrated, and Dr. Fruitman observed that plaintiff was anxious (Tr. 698). Dr. Fruitman completed a Treating Physician's Wellness Plan Report, in which Dr. Fruitman diagnosed plaintiff with panic disorder and bipolar disorder (Tr. 692). Dr. Fruitman found that plaintiff knew who he was, where he was and the approximate time and that he suffered from increased anxiety, mood changes, periods of hyperactivity, passive suicide ideation and feelings of depression and of being overwhelmed (Tr. 692). He also found that plaintiff was compliant with treatment, which included the medications Klonopin, Lamictal, Sinequan and Ambien (Tr. 692). Dr. Fruitman opined that plaintiff was unemployable for six months (Tr. 693).

         b. Dr. Arlene Broska, Ph.D.

         At the request of the SSA, Dr. Arlene Broska, Ph.D., performed a psychiatric consultative examination of plaintiff on August 28, 2012 (Tr. 561-65). Plaintiff complained of waking up at night, having a poor appetite and feeling dysphoric and fatigued (Tr. 561). Plaintiff also complained that he got anxious when around large numbers of people, that he got distracted and that he felt bad about himself (Tr. 561-62). He reported that he could dress, bathe and groom himself (Tr. 563). He also stated that he cleaned and did the laundry every two weeks (Tr. 563). Plaintiff further stated that he shopped and traveled independently on public transportation, although he did not enjoy traveling independently (Tr. 563). He also reported that he had friends, listened to the radio and attended his drug treatment program (Tr. 563).

         Dr. Broska observed that plaintiff's demeanor and responsiveness to questions were cooperative and that his manner of relating, social skills and overall presentation were fair (Tr. 562). According to Dr. Broska's report, plaintiff was casually dressed and well groomed (Tr. 562). Additionally, his posture and motor behavior were normal, and eye contact was appropriate (Tr. 562). Plaintiff's thought process was coherent and goal-directed, his affect was anxious and his mood was neutral (Tr. 562-63). There was no evidence of hallucinations, delusions or paranoia (Tr. 562). Plaintiff's sensorium was clear and his attention was intact, and he knew who he was, where he was and the approximate time (Tr. 563). Plaintiff's recent and remote ...


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