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Corona v. Berryhill

United States District Court, E.D. New York

March 24, 2017

TONY CORONA, Plaintiff,
v.
NANCY A. BERRYHILL[1] Acting Commissioner, Social Security Administration, Defendant.

          MEMORANDUM & ORDER

          MARGO K. BRODIE, United States District Judge

         Plaintiff Tony Corona filed the above-captioned action pursuant to 42 U.S.C. § 405(g) seeking review of a final decision of the Commissioner of Social Security (the “Commissioner”) denying his claim for supplemental security income under the Social Security Act (the “SSA”). Plaintiff moves for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, claiming that Administrative Law Judge Kieran McCormack (the “ALJ”) erred by improperly weighing the evidence in determining Plaintiff's residual functional capacity (“RFC”) and improperly assessing Plaintiff's credibility. (Pl. Mot. for J. on the Pleadings, Docket Entry No. 9; Pl. Mem. in Supp. of Pl. Mot. (“Pl. Mem.”), Docket Entry No. 10.) Plaintiff also argues that the Appeals Council failed to consider new and material evidence. (Id.) The Commissioner cross-moves for judgment on the pleadings, arguing that the Court should affirm the ALJ's decision because it is supported by substantial evidence. (Comm'r Cross-Mot. for J. on the Pleadings, Docket Entry No. 12; Comm'r Mem. in Opp'n to Pl. Mot. and in Supp. of Comm'r. Cross-Mot. (“Comm'r Mem.”), Docket Entry No. 13.) For the reasons set forth below, Plaintiff's motion for judgment on the pleadings is granted, the Commissioner's cross-motion for judgment on the pleadings is denied, and the case is remanded for further proceedings consistent with this Memorandum and Order.

         I. Background[2]

         Plaintiff was born in 1981. (Certified Admin. Record (“R.”) 23, 105, 370, Docket Entry No. 8.) Plaintiff has an eleventh-grade education. (R. 23.) Between 2001 and 2008, Plaintiff was employed part-time through a temporary staffing service, where he loaded and unloaded trucks, programed cellular telephones and performed other warehouse work. (R. 48-49, 106-07, 119-20, 411, 429-31.) Plaintiff has not worked since approximately January of 2008 because of a physical injury. (R. 17-18.) On February 4, 2013, Plaintiff applied for supplemental security income benefits, alleging disability as of February 4, 2013 because of a learning disability, anger problems, depression, problems sleeping and pain in the left side of the neck, middle of the back and left arm.[3] (R. 218, 410.) Plaintiff's application was denied after initial review, and he requested a hearing before an ALJ. (R. 245-50, 261.) Plaintiff appeared with his attorney before ALJ Valorie Stefanelli on May 1, 2014.[4] (R. 99-143.) By decision dated May 14, 2014, ALJ Stefanelli determined that Plaintiff was not disabled and denied Plaintiff's application. (R. 219- 40.) Plaintiff appealed ALJ Stefanelli's decision and on August 5, 2014, the Appeals Council remanded the case so that additional testimony could be obtained from a vocational expert. (R. 241-44.) Plaintiff appeared with his attorney before the ALJ on December 9, 2014. (R. 31- 97.) By decision dated January 21, 2015, the ALJ determined that Plaintiff was not disabled and denied Plaintiff's application. (R. 10-30.) Plaintiff appealed the ALJ's decision and on November 2, 2015, the Appeals Council denied review of the ALJ's decision. (R. 1-7.) Plaintiff commenced this action on December 14, 2015. (Compl., Docket Entry No. 1.)

         a. Plaintiff's testimony

         i. May 1, 2014 hearing

         During the May 1, 2014 hearing before ALJ Stefanelli, Plaintiff testified that he was last employed in 2008. (R. 105-06.) Plaintiff worked for approximately five-to-six months for a warehouse, where his duties included loading and unloading trucks and programming cellular telephones with an automatic upload. (R. 106-07, 120.) Plaintiff performed his warehouse work independently, only interacting with his manager. (R. 121-22.) Plaintiff ceased working in 2008 because he was injured on his way to work when he slipped on ice and fell. (R. 107-08.) Plaintiff testified that but-for his injury, he would be able to work his prior warehouse job but later in the hearing explained that he might have difficulty attending work regularly because of “everything I've been through, like I'm just tired of everything.” (R. 112, 131.) Plaintiff then discussed his mental impairments, which caused him to “stop[] caring about anything.” (R. 113.) Plaintiff witnessed a very close friend's murder in the summer of 2011 and participated as a witness during the criminal conviction of the shooter. (R. 113-14.)

         When ALJ Stefanelli asked Plaintiff when his mental impairments began, he explained that his mother told him he had a “learning problem” when he was a child and that even when he was working he was unhappy about everything else in his life. (R. 115, 119.) Plaintiff estimated that he retreated from social contact in 2009. (R. 115-16.) Plaintiff avoids people when he goes outside, and he suffers from panic attacks when he is close to people. (R. 118, 121.) Plaintiff has trouble sleeping. (R. 118.) Plaintiff has a weak appetite, causing him to go days without eating at some points and, as a result, he has lost between twenty and thirty pounds since 2011. (R. 125-26.) He has anger issues, mostly with people in his neighborhood that knew about the shooting of his good friend, but he walks away from them when he begins to become upset. (R. 128-29.) Plaintiff also expressed difficulty with concentrating, social interactions and memory.[5](R. 132.) Plaintiff lives with his mother and sister but often does not interact with them and stays in his room where he watches television or uses his computer. (R. 115, 118.) His mother does the household chores, laundry, shopping and cooking. (R. 133.) Plaintiff was homeless for a period of time approximately one year before the ALJ hearing. (R. 123.)

         Plaintiff began treatment for his mental impairments in 2013, after his family and friends encouraged him to seek treatment and apply for disability benefits. (R. 130.) Plaintiff sees therapist Jennifer Salto, LMSW, biweekly. (R. 114.) Plaintiff sees psychiatrist Faisal Chaudhry, M.D., once every three to four weeks. (R. 114.) Plaintiff explained that he discussed medications with his psychiatrist but that pain medication previously caused him to become sick, so he is not currently taking any psychiatric medications. (R. 116-17.)

         ii. December 9, 2014 hearing

         During a December 9, 2014 hearing before the ALJ, Plaintiff reiterated that he worked part-time through temporary employment agencies between 2001 and 2008 until he fell and was injured on his way to work in 2008. (R. 48-50.) Plaintiff was diagnosed with depression and post-traumatic stress disorder (“PTSD”), which he has suffered from since he “was younger.” (R. 58.) Plaintiff does not take any psychiatric medications. (R. 58.) Plaintiff suffered from dizziness as a side effect of pain medication. (R. 58.) Plaintiff continued to see Dr. Chaudhry but said of the treatment, “it's not really doing nothing.” (R. 59.)

         Plaintiff explained that he struggled with sleep and would sleep at odd times of the day as a result. (R. 60.) Plaintiff only sleeps between three and four hours at a time. (R. 60-61.) Plaintiff spends most of his time in his room watching television or on his computer unless he has an appointment. (R. 62-63.) He often does not feel like eating. (R. 62.) Plaintiff occasionally goes to the store, but if he sees a crowd in the store he will not enter. (R. 64.) When Plaintiff socializes with friends he does not talk, and his friends inquire whether something is wrong. (R. 64.) Plaintiff becomes anxious in crowds, even sometimes of two or three people, and he has anxiety and panic attacks. (R. 67.) He could not identify any specific triggers that result in the anxiety or panic attacks. (R. 68.) Plaintiff has not been hospitalized for a panic attack.[6] (R. 69.)

         b. Vocational expert testimony

         In relevant part, the vocational expert testified during the December 9, 2014 hearing that a person with Plaintiff's physical limitations is limited to low stress work, defined as requiring no more than simple, routine, repetitive tasks with few, if any, workplace changes and only occasional interactions with supervisors, co-workers and/or the general public. The vocational expert testified that such a person could work as a marker, domestic laundry worker or laminating machine off-bearer. (R. 72-74.) The vocational expert testified that the jobs he found available for someone of Plaintiff's RFC limitation were jobs “working basically alone, that you wouldn't be working in tandem with anyone else.” (R. 76.) The same jobs would be possible for someone who was limited to “only casual non-intense contact with others.” (R. 81.) However, an individual who could not have casual non-intense contact or could not deal with a supervisor or had to work completely alone, could not perform any work. (R. 83, 87, 88-89.) Similarly, an individual who would be absent from work two or three times during a month would not be able to sustain work. (R. 93-94.)

         c. Mental health medical evidence

         i. Woodhull Medical and Mental Health Center

         On April 24, 2013, Plaintiff went to Woodhull and told them that he needed a doctor for social security disability. (R. 538.) Plaintiff explained that he felt depressed and had a poor appetite and previously had thoughts of suicidal ideation. (R. 539.) On prior occasions, Plaintiff self-inflicted wounds to ease his stress then began substituting tattoos and body piercing to ease his stress. (R. 539.) Plaintiff scored sixteen on the PHQ9, [7] indicating moderately severe depression. (R. 668-69.) Plaintiff was examined by Anastasia Asanov, M.D., who assessed major depressive disorder and explosive personality disorder. (R. 540.) Plaintiff appeared alert and oriented to time, place and person and was not in acute distress. (R. 539.) Dr. Asanov recommended anti-depressant medication, but Plaintiff declined. (R. 540.) Dr. Asanov referred Plaintiff to Woodhull's unit for social work and behavioral medicine. (R. 540.)

         The next day, April 25, 2013, Plaintiff was evaluated by Jennifer Felsher, LMSW. (R. 675.) Plaintiff was found to be in a “depressed mood, blunted affect” but otherwise was alert and oriented as to time, place and person and denied having suicidal or homicidal ideations and hallucinations. (R. 675.) Plaintiff denied prior suicide attempts. (R. 675.) Plaintiff scored nineteen on the PHQ9. (R. 675.) Plaintiff reported loss of interest, depressed mood, anger, lack of energy, poor appetite, loneliness, forgetfulness and anxiety. (R. 675.) Plaintiff declined psychiatric medication. (R. 676.)

         On June 3, 2013, Marie Josee Cadet, a Nursing Assistant for Woodhull, noted in Plaintiff's screening that during the past two weeks he had “not had less interest and/or pleasure in doing things” and had “not been feeling down, depressed and/or hopeless.” (R. 689.) Plaintiff returned to Woodhull on June 13, 2016 to request the completion of his social security disability forms and was again examined by Dr. Asanov. (R. 544, 546.) Plaintiff appeared alert and oriented to time, place and person and was not in acute distress. (R. 545.) Plaintiff denied suicidal or homicidal ideations. (R. 546.) Dr. Asanov diagnosed Plaintiff with major depressive disorder and explosive personality disorder. (R. 546.) Dr. Asanov recommended a follow-up with a psychiatrist.[8] (R. 546.)

         1. Jennifer Sartor, LMSW

         On Plaintiff's psychiatric outpatient initial questionnaire for Woodhull, completed on June 11, 2013, Plaintiff indicated feelings of loneliness, depression, anger, hostility and difficulty trusting others. (R. 653.) Jennifer Sartor, LMSW, completed Plaintiff's social work screening. (R. 655.) Plaintiff reported his history with self-harm as well as his education and work history. (R. 655.) Plaintiff presented as “somewhat guarded, ” but his affect was appropriate and his speech logical. (R. 655.) Sartor reported Plaintiff's judgment as poor, impulsivity as fair and his eye contact as “o.k.” (R. 655.) Plaintiff denied suicidal or homicidal ideations. (R. 655.)

         On July 8, 2013, Sartor conducted an individual psychotherapy session with Plaintiff. (R. 656.) Sartor noted that Plaintiff presented as “somewhat withdrawn” but was otherwise alert and oriented to time, place and person and denied perceptual disturbances.[9] (R. 656.) Plaintiff reported that he was doing “o.k.” (R. 656.) Plaintiff denied suicidal or homicidal ideations. (R. 656.) Sartor completed a psychosocial assessment on the same day, documenting Plaintiff's social history. (R. 648-49.)

         Plaintiff met with Sartor again on July 23, 2013 and her findings were largely consistent with those on July 8, 2013, except that Sartor noted that Plaintiff appeared calm and included a diagnosis of major depressive disorder. (R. 657.) On August 1, 2013 and August 27, 2013, Plaintiff met with Sartor again and her findings were consistent except that Plaintiff presented as “detached” on August 1, 2013 and indicated he was “doing well” on August 27, 2013. (R. 658- 59.) On September 17, 2013, Plaintiff was “more expressive than [in the] prior session.” (R. 660.) Plaintiff expressed hesitation and anxiety about testifying at the upcoming criminal trial of the person who killed his friend. (R. 660.) On October 3, 2013, Plaintiff reported to Sartor that he testified during the trial and the defendant was convicted.[10] (R. 661.)

         On November 14, 2013, it appears that Sartor[11] completed a Treating Physician's Wellness Plan Report. (R. 594-95.) Sartor provided an interim diagnosis of mood disorder, not otherwise specified, and PTSD but noted that Plaintiff was scheduled for bi-weekly psychotherapy sessions and had an appointment scheduled with Dr. Chaudhry for December 23, 2013. (R. 594.) The form indicated that more information was needed to determine Plaintiff's ability to work.[12] (R. 594.)

         2. Faisal Chaudhry, M.D.

         On February 27, 2014, Dr. Chaudhry, Plaintiff's psychiatrist, examined Plaintiff. (R. 837.) Dr. Chaudhry's mental status examination revealed that Plaintiff was withdrawn, had a depressed and anxious mood, had “poor” short-term memory. (R. 837.) Dr. Chaudhry found that Plaintiff's attention, concentration, “ability to abstract, ” eye contact, insight and judgment were “fair” while his long-term memory and impulse control were “good.” (R. 837.) Plaintiff did not have any suicidal or homicidal ideations and he was alert and oriented with a full, non-labile affect. (R. 837.) Dr. Chaudhry assigned Plaintiff a global assessment of functioning (“GAF”) score of “53/55.”[13] (R. 837.) Dr. Chaudhry indicated that Plaintiff's “history of trauma” has created symptoms including “disturbed sleep, nightmares and hypervigilance.” (R. 837.)

         On February 28, 2014, Dr. Chaudhry completed a Treating Physician's Wellness Plan Report. (R. 756-57.) Dr. Chaudhry diagnosed Plaintiff with moderate recurrent major depressive disorder and PTSD as of June 11, 2013 based on clinical findings of depressed and anxious mood, clammy hands and constricted affect. (R. 756.) Dr. Chaudhry also included in his clinical findings that Plaintiff did not have suicidal or homicidal ideations, was alert and oriented and made fair eye contact. (R. 756.) Plaintiff had begun a course of psychotherapy treatment but was not prescribed any psychotropic medications. (R. 756.) Dr. Chaudhry opined that Plaintiff would not be able to work for at least twelve months. (R. 757.)

         On April 24, 2014, Sartor completed a Psychiatric Impairment Questionnaire that Chaudhry signed. (R. 826-33.) The questionnaire listed Plaintiff's first treatment date as June 11, 2013. (R. 826.) Plaintiff was diagnosed with prolonged PTSD based on a mental health examination. (R. 826-27.) Plaintiff scored a fifty-five on the GAF. (R. 826.) The report indicated clinical findings of poor memory, sleep and mood disturbance, social withdrawal or isolation, recurrent panic attacks, anhedonia or pervasive loss of interests, intrusive recollections of a traumatic experience, feelings of guilt/worthlessness and hostility and irritability. Sartor noted the most severe or frequent findings were Plaintiff's anxiety and depression. (R. 827-28.) Plaintiff's symptoms included depression, anxiety in crowds, irritability, impulsivity, sleep disturbance and panic attacks. (R. 828.)

         Dr. Chaudhry then measured Plaintiff's limitations as to four non-exertional categories: (1) understanding and memory, (2) sustained concentration and persistence, (3) social interactions, and (4) adaption.[14] (R. 829-31.) Dr. Chaudhry opined that there was no evidence that Plaintiff's understanding and memory were limited. (R. 829.) As to sustained concentration and persistence, Dr. Chaudhry opined that Plaintiff was “mildly limited” in his ability to sustain ordinary routine without supervision and make simple work-related decisions; “moderately limited” in his ability to maintain attention and concentration for extended periods, complete a normal workweek without interruptions from psychologically based symptoms and perform at a consistent pace without rest periods that were unreasonable in both number and length; and “markedly limited” in his ability to work in coordination with or proximity to others without being distracted by them. (R. 829.) As to social interactions, Dr. Chaudhry opined that Plaintiff was limited in each capacity. (R. 830.) Plaintiff was “moderately limited” in his ability to ask simple questions or request assistance, accept instructions and respond appropriately to criticism from supervisors, maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness. (R. 830.) Plaintiff was “markedly limited” in his ability to interact appropriately with the general public and his ability to get along with co-workers or peers without distracting them or exhibiting behavioral extremes. (Id.) As to adaptation, Plaintiff was “mildly limited” in his ability to respond appropriately to changes in the work setting and set realistic goals or make plans independently. (R. 830-31.)

         Dr. Chaudhry indicated that Plaintiff experiences episodes of deterioration or decompensation in work or work-life settings that cause him to withdraw and/or experience exacerbation of symptoms, explaining that Plaintiff “has difficulty around other[s] which leads to isolating behavior.” (R. 831.) Dr. Chaudhry opined that Plaintiff was capable of tolerating “low stress” work. (R. 831.) Dr. Chaudhry also opined that Plaintiff's symptoms likely would produce “good” and “bad” days and Plaintiff likely would miss about two or three days of work each month. (R. 832-33.) Dr. Chaudhry repeated the most limiting of the findings in a December 8, 2014 letter and indicated that Plaintiff had been in his care since April of 2013. (R. 846.)

         ii. Consultative examiner - Sally Morcos, Psy. D.[15]

         On March 1, 2013 Plaintiff was examined by consultative psychiatrist Sally Morcos, Psy. D. (R. 521-25.) Plaintiff reported his prior work history and indicated that he had a learning disability but had completed the tenth grade[16] with special education courses. (R. 521.) Plaintiff explained that he had not worked since 2008 and that he was not currently able to work because his arm hurt and he had an “anger problem.” (R. 521.) Plaintiff reported that he was able to use public transportation, clean his laundry at a laundromat and shop and manage money. (R. 521, 524.) Plaintiff explained that he was homeless and stayed with friends. (R. 521.)

         Plaintiff denied any psychiatric hospitalizations or outpatient treatment. (R. 521.) Plaintiff reported trouble sleeping, loss of appetite resulting in an unknown amount of weight loss, headaches, frequent sweating, short-term memory deficits, negative thinking and “a lot of hate and anger.” (R. 521.) Plaintiff explained that since “he was young, ” he has seen shadows and sometimes hears sounds “like someone is sitting next to him.” (R. 521.) Plaintiff attempted suicide in 2012 and last experienced suicidal ideations a few months before the appointment but was not experiencing suicidal ideations at the time of the appointment. (R. 522.) Plaintiff reported homicidal ideations focused on the person who murdered his friend but he did not have any concrete plans. (R. 522.) Dr. Morcos contacted emergency services and had Plaintiff transferred to Long Island College Hospital for further risk assessment based on his homicidal ideations. (R. 522.)

         Dr. Morcos performed a mental status examination and found Plaintiff cooperative and that he “presented with adequate social skills.” (R. 523.) Plaintiff appeared well groomed; presented with normal posture and behavior; maintained appropriate eye contact; delivered intelligible, expressive and receptive speech; presented with a coherent and goal directed thought process without evidence of hallucinations, delusions or paranoia; presented an appropriate affect, neutral mood and clear sensorium; and had intact attention and concentration as well as intact recent and remote memory skills. (R. 523.) Dr. Morcos reported poor insight and poor judgment. (R. 523-24.)

         Dr. Morcos diagnosed Plaintiff, in relevant part, with adjustment disorder with disturbance of conduct and her prognosis was “guarded, ” given Plaintiff's feelings of anger, hate and the absence of treatment. (R. 524-25.) Dr. Morcos opined that Plaintiff can follow and understand simple directions and instructions; perform simple tasks independently; maintain attention, concentration and a normal schedule; and learn new tasks and perform complex tasks with supervision. (R. 524.) Dr. Morcos opined that Plaintiff was limited in that he cannot make appropriate decisions, relate with others, or appropriately deal with stress because of his “poor coping skills.” (R. 524.) Dr. Morcos recommended psychological therapy to help Plaintiff improve his coping skills. (R. 525.)

         iii. FEDCAP evaluation

         On October 7, 2013, Plaintiff was evaluated by FEDCAP Rehabilitation Services, Inc. (“FEDCAP”), a non-profit organization. (R. 566.) As part of FEDCAP's evaluation, Plaintiff was examined by Mehjabeen Ahmed, M.D.[17] (R. 579-591.) Plaintiff described a history of depression, violent behavior, poor concentration and inability to “be around other people.” (R. 579.) Plaintiff denied appetite or weight changes and did not indicate any memory problems. (R. 581, 584.) Plaintiff was referred for a psychiatric examination.[18] (R. 588.) The comments from the psychiatric exam included: chronic mood disorder, probable bipolar disorder not otherwise specified, panic disorder with agoraphobia, claustrophobia, possible attention deficit hyperactivity disorder/attention deficit disorder by history, rule-out PTSD with flashbacks related to recently witnessing the murder of a friend, and rule-out personality disorder not otherwise specified. (R. 591-92.) The psychiatric evaluator diagnosed episodic mood disorders, anxiety, dissociative and somatoform disorders. (R. 593.) The evaluator recommended psychiatric treatment with medication in liquid form, weekly psychotherapy sessions and training to help Plaintiff adjust his behavior and manage stress and anger. (R. 592.) On October 9, 2013, Dr. Ahmed completed a Wellness Plan Summary Re-Exam Form in which he indicated that Plaintiff's non-exertional work limitations included cognitive, emotional and interpersonal limitations as detailed in the psychiatric report. (R. 821.) The FEDCAP evaluation concluded that Plaintiff was unable to work for at least ninety days. (R. 802.)

         d. The ALJ's decision

         The ALJ incorporated by reference the discussion of the medical evidence and hearing testimony contained in ALJ Stefanelli's prior decision as part of the final decision. (R. 20.) The ALJ conducted the five-step sequential analysis as required by the Social Security Administration under the authority of the SSA.

         At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since February 4, 2013, the date that Plaintiff identified as the onset of his disability. (R. 16.) At step two, the ALJ found that Plaintiff had the following severe impairments: internal derangement of the left shoulder and osteoarthritis in the cervical spine, major depressive disorder and PTSD. (R. 16.) The ALJ found that Plaintiff's obesity and past history of cannabis use were non-severe and his low back impairment was not medically determinable. (R. 16.) At step three, the ALJ determined that Plaintiff does not have an impairment or combination of impairments that meet, or are equal to, the severity of one of the impairments listed in Appendix 1 of the Social Security Regulations. (R. 17.) At step four, the ALJ found that Plaintiff has the mental RFC to perform:

low stress jobs, defined as jobs containing no more than simple, routine, and repetitive tasks; involving only simple work related decision; with few, if any, workplace changes, with few decisions made while performing work; and where he is not exposed to crowds, has no requirement to interact with the general public to perform work duties, and where there is only casual non-intense contact with others necessary to perform the work duties.

(R. 19.) The ALJ considered Exhibits 23F through 25F, which were not previously considered by ALJ Stefanelli, and determined that they “do not provide any additional support, or basis, for a finding of disability.” (R. 20.)

         In assessing the opinion evidence, the ALJ assigned “great weight” to most of the opinions of Dr. Chaudhry, Plaintiff's treating psychiatrist, including Plaintiff's “marked limitations in terms of interacting with others, such as co-workers or the general public” and the otherwise “wide range of functionality in work-related activities.” (R. 21.) The ALJ considered Dr. Chaudhry's GAF score assessment of fifty-five, his conservative psychiatric treatment regimen and the lack of medication and hospital visits to treat Plaintiff's condition and concluded that Dr. Chaudhry, “as a treating specialist, has depicted a consistent picture of [Plaintiff's] residual mental ...


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