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Anderson v. Berryhill

United States District Court, E.D. New York

March 27, 2017

NANCY A. BERRYHILL,[1]Acting Commissioner of Social Security, Defendant.


          DORA L. IRIZARRY, Chief United States District Judge

         On April 4, 2011, Plaintiff Leticia Rochelle Anderson (“Plaintiff”) filed an application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act (the “Act”), alleging an inability to work because of Attention Deficient Hyperactivity Disorder (“ADHD”), depression, Hepatitis C, and Opiate Dependence. See Certified Administrative Record (“R.”), Dkt. Entry No. 12 at 146-55, 192.[2] Her claim was denied and she requested a hearing. Id. at 65, 70-74, 82-84. On March 12, 2013, Plaintiff appeared with counsel at a hearing before Administrative Law Judge Hilton R. Miller (the “ALJ”). Id. at 42-64. In a decision dated March 20, 2013 (“ALJ Decision”), the ALJ concluded that Plaintiff was not disabled within the meaning of the Act. Id. at 17-34. On September 25, 2014, the ALJ's decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review. Id. at 1-6. This appeal followed.

         Plaintiff filed the present appeal seeking judicial review of the denial of benefits, pursuant to 42 U.S.C. § 405(g), on November 26, 2014. See Complaint (“Compl.”), Dkt. Entry No. 1. On April 27, 2015, the Commissioner moved for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure, seeking affirmance of the denial of SSI. See Mem. of Law in Supp. of Def.'s Mot. for J. on the Pleadings (“Def. Mem.”), Dkt. Entry No. 14. On May 27, 2015, Plaintiff opposed the Commissioner's motion and cross-moved for a judgment on the pleadings, asking that this Court reverse the Commissioner's determination that she is not disabled and that the matter be remanded for further administrative proceedings. See Mem. of Law in Supp. of Pl.'s Mot. for J. on the Pleadings & in Opp. to Def.'s Mot. for J. on the Pleadings (“Pl. Mem.”), Dkt. Entry No. 16. The Commissioner replied on June 11. 2015. See Reply Mem. of Law in Supp. of Def.'s Mot. for J. on the Pleadings & in Opp. to Pl.'s Cross-Mot. for J. on the Pleadings (“Def. Reply”), Dkt. Entry No. 17.

         For the reasons set forth below, the Commissioner's motion for judgment on the pleadings is denied, Plaintiff's motion is granted, and this action is remanded to the Commissioner for additional proceedings consistent with this Opinion and Order.

         BACKGROUND [3]

         A. Non-Medical and Self-Reported Evidence

         Some contextual points of Plaintiff's history are, at best, unclear. She was married but lives with her fiancé in an apartment in the Bronx. R. at 161-62, 182, 187, 191, 423, 426. She also receives correspondence at an address in Brooklyn.[4] See Id. at 1. Plaintiff has claimed to have completed her high school education in both 1986 and in 2001. Id. at 193, 424. During her time in high school, Plaintiff both asserts that she took special education classes because of learning disabilities and denies ever being enrolled in such classes. Compare Id. at 193, with Id. at 348.

         What is clear is that Plaintiff was born in 1967 and that she was 43 years old when she applied for SSI. Id. at 146. As she tells her story, her past is marred by personal difficulties, tragedies, and crime. At age 7, she was molested by her uncle. Id. at 423. By age 15, she was a mother. Id. at 424. Plaintiff's mother asked another family member to raise her baby and, as a result, the relationship between Plaintiff and her mother deteriorated. Id. By age 16, Plaintiff was drinking beer and using cocaine and marijuana, and by age 18, she was using heroin. Id. After abandoning her education, she engaged in prostitution and was raped on multiple occasions. Id. at 424, 426. She has been arrested repeatedly for narcotics offenses and has a history of homelessness. Id. at 425-26. Plaintiff was employed as a cashier at McDonald's from December 2004 to December 2005, and at Panera Bread from January 2006 to December 2006. Id. at 193. She has been unemployed since leaving Panera Bread. See Id. at 171-78, 192-93.

         On April 18, 2011, Plaintiff completed an Initial Function Report (“IFP”). Id. at 162-79. In her own words, she complained that her “mood [was] the main thing that affects [her] ability to do things.” Id. at 163. As a result, she “just [does not] feel like doing anything at all.” Id. She could not sleep through the night, and suffered from nightmares. Id. She did not report any problems concerning personal care beyond difficulty remembering her medication schedule. Id. at 164. Plaintiff made daily trips to a Methadone Maintenance Treatment Program (“MMTP”) and had no problem traveling by herself. Id. at 165, 167. She could prepare meals, shop, and manage her personal finances. Id. at 164, 166. She admitted having problems getting along with other people and has “always been” antisocial, but does not have trouble with people in positions of authority. Id. at 167, 169. Yet, in contrast to being antisocial, Plaintiff also notes that she “like[s] to talk.” Id. at 168. She also stated that she enjoys dancing. Id. at 166. Plaintiff reported that she “always” has had trouble paying attention and finishing tasks. Id. at 169. Plaintiff can follow directions, but has difficulty, “if it's a lot to remember.” Id. at 169-70.

         B. Plaintiff's Testimony Before the ALJ

         Plaintiff first appeared for a hearing before the ALJ on December 4, 2012. Id. at 37-41. At that hearing, Plaintiff indicated a desire to proceed with representation and the ALJ adjourned the hearing. Id. at 40. Plaintiff secured representation shortly thereafter and the hearing continued on March 12, 2013 (“March 12 Hearing”). Id. at 42-64.

         At the March 12 Hearing, Plaintiff testified that she cannot sleep if she does not take her medication. Id. at 50. When she is able to sleep, she has nightmares and flashbacks to her past. Id. She reiterated that she has trouble remembering to take her medication and perform various tasks during the day. Id. at 52-53. When she does remember to take her medication during the day, the side effects make her feel “sluggish, fatigued, ” and “always [in need of] naps.” Id. at 52. She claimed to have hallucinations and the ability to hear people's thoughts. Id. at 55. She testified that she does not like to speak with people because “they don't understand, ” and her frustration with her inability to communicate has led to physical confrontations in the past. Id. at 54. In fact, she admitted to fighting with individuals at her jobs at McDonald's and Panera Bread. Id.

         C. Vocational Expert's Testimony Before the ALJ

         Louis Szollsy, Jr. appeared via telephone as a Vocational Expert (“VE”) at the March 12 Hearing. Id. at 44, 57-64. He testified that Plaintiff's past positions in the fast food industry were “unskilled” and required “light exertion.” Id. at 60.

         The first hypothetical the ALJ posed to the VE (“Hypo #1”) was that of an individual with Plaintiff's “age, education, and work experience, and a residual functional capacity [(“RFC”)] to perform work at all exertional levels, ” but added limitations that: (1) the tasks performed must be simple, routine and repetitive; (2) the position requires only simple decisions; (3) there are only occasional changes in routine; (4) there is only “brief and superficial contact with others;” and (5) the position is “entry level and unskilled in nature.” Id. at 60-61. The VE stated that the individual in Hypo #1 could not perform Plaintiff's past relevant work, as those positions required interacting with other people. Id. at 61. However, the VE did identify three positions that such an individual could perform. First, the VE identified the position of “garment folder, ”[5] an unskilled job in retail, which had 400, 000 available nationally and 13, 000 regionally. Id. Alternatively, the VE stated that the individual in Hypo #1 also could perform the duties of a “garment sorter, ”[6] which had 230, 000 jobs available nationally and 6, 000 regionally. Id. Finally, the VE said that the individual in Hypo #1 also could meet the requirements of a “ticket printer/tagger, ”[7] which had 230, 000 jobs available nationally and 5, 000 regionally. Id. at 61-62.

         The ALJ then modified the characteristics of the person in Hypo #1, positing a person with all of the aforementioned characteristics, but adding the fact that the individual “would be off task [twenty] percent of the time” (“Hypo #2”). Id. at 62. With this added limitation, the VE testified that the individual described in Hypo #2 would not be employable competitively. Id.

         At this juncture, Plaintiff's counsel asked the VE to consider a modification to the characteristics described in Hypo #1. Id. at 63. In this scenario, counsel asked the VE to consider the restrictions described in Hypo #1 and add to them the “need for supervision to remember instructions” (“Att'y Hypo”). Id. The VE explained that, if there were a consistent need for supervision in performing “rudimentary and elementary” tasks, the person in the Att'y Hypo would not be “employable in the national economy.” Id.

         D. Summary of the Medical Evidence

         Plaintiff was admitted to an outpatient MMTP at Beth Israel Medical Center to deal with her substance abuse problems relating to cocaine and heroin on February 2, 2010. Id. at 471, 474-75, 543-44. In August 2010, she was evaluated at FEGS/WeCARE.[8] Id. at 254-97. She reported no occupational or vocational training. Id. at 264. She also reported that she did not have any mental health problems, did not suffer from hallucinations, engaged in a wide range of daily activities, and had no limitations in traveling. Id. at 262-63. Dr. Hun Han (“Dr. Han”), a hospital physician, physically examined Plaintiff and noted unremarkable findings. Id. at 268-69. Dr. Han diagnosed Plaintiff with Hepatitis C, anemia, and MMTP for substance addiction. Id. at 272. He also determined that Plaintiff had no work related restrictions and that she was employable without limitation. Id. at 270, 272, 278-79.

         Later that year, on September 7, 2010, Plaintiff presented at CIS Counseling Center, Inc. (“CIS”). Id. at 365-66. On her Screening Form, Plaintiff indicated that the reasons for her visit were depression, anxiety, poor sleep, mood swings, frustration, restlessness, “lack of pleasure, ” and a desire to “work on personal growth [and] maintain sobriety.” Id. at 365. On September 10, 2010, she was interviewed by Renee Roberts (“Roberts”), a therapist at CIS. Id. at 243-47. During the session, Plaintiff complained of mood swings and “extreme stress reactions” to the requirements of the WeCARE program. Id. at 243. She stated that her medical problems were Hepatitis C, low blood pressure, anemia, and poor sleep. Id. at 245. She also reported a history of substance abuse, rape, and homelessness since turning age sixteen years old. Id. at 244-46. Plaintiff was not suicidal and did not experience hallucinations. Id. at 245. Roberts observed that Plaintiff was oriented and cooperative, related well, goal directed, and that her judgment and insight were fair. Id. Roberts diagnosed Plaintiff with Generalized Anxiety Disorder (“GAD”), Opioid Dependency, and polysubstance dependence on Axis I; there was no diagnosis for Axis II. Id. at 247. Roberts identified unemployment as a moderate stressor (Axis IV), and rated Plaintiff's Global Assessment of Functioning (“GAF”) at 57. Id. Roberts concluded that Plaintiff would benefit from weekly psychotherapy sessions to help her cope with stress and support her goals. Id. On September 28, 2010, Roberts developed an Initial Treatment Plan for Plaintiff to help her build life skills, learn to deal with stress, aid in controlling her substance abuse habits, and quit smoking. Id. at 418-22. Roberts saw Plaintiff approximately once a week at CIS from September 2010 until August 2, 2011. See Id. at 363-64, 372-423, 442, 444-45.

         On October 14, 2010, Plaintiff began seeing Mamid Moussavian, M.D. (“Dr. Moussavian”), a psychiatrist at CIS. Id. at 238-42. At that meeting, Dr. Moussavian observed that Plaintiff was cooperative, made good eye contact, and that her speech was fluent, slow, relaxed, and goal oriented. Id. at 238. Her thought processes also were logical, relevant, and goal oriented. Id. While Plaintiff was anxious, she was not depressed, paranoid, or suffering from looseness of association. Id. at 238-39. Her memory was intact, oriented to time, place, and person, and did not suffer from hallucinations, delusions, or suicidal/homicidal thoughts. Id. at 239-40. Dr. Moussavian assessed Plaintiff's judgment, insight, reality testing, attention and concentration as fair. Id. at 240. He determined that her frustration tolerance and impulse control were poor. Id. Dr. Moussavian ultimately diagnosed Plaintiff with GAD, Post-Traumatic Stress Disorder (“PTSD”), rule out Attention Deficit Disorder (“ADD”), and Opioid Dependence on Axis I, noted “severe” on Axis IV, and rated her GAF at 55. Id. at 241. He recommended continued individual psychotherapy to help with her vocational rehabilitation application. Id. Dr. Moussavian saw Plaintiff approximately once a month from October 2010 until August 4, 2011. Id. at 363-64.

         In a New York State Educational Department Vocational and Educational Services for Individual with Disabilities (“VESID”) Form dated October 28, 2010, Dr. Moussavian reported that Plaintiff wanted to go to school to become a Credentialed Alcoholism and Substance Abuse Counselor (“CASAC”) and that her work ability estimate was “good.” Id. at 467-68.

         On December 10, 2010, Plaintiff saw Dr. Moussavian and complained that she had been feeling more anxious and having difficulty sleeping and focusing. Id. at 395. Dr. Moussavian prescribed Ritalin, Lexapro, and Seroquel and instructed Plaintiff to continue her psychotherapy. Id. In that day's Treating Physician's Wellness Plan Report Form, Dr. Moussavian reiterated his diagnoses of depression, GAD, and Opioid Dependence based upon his examination and concluded that Plaintiff was “unable to work for at least [twelve] months.” Id. at 302-03.

         Less than a month later, on December 24, 2010, Dr. Moussavian completed another VESID Form, which repeated his previous findings and the determination from the October 2010 VESID Form that Plaintiff's work ability estimate was “good.” Id. at 465-66. Plaintiff was friendly and cooperative, related well, and fully oriented. Id. at 465. Similarly, Plaintiff's speech was fluent, clear, and goal oriented. Id. Although her mood was sad and her affect was both sad and anxious, her thought processes were coherent and free of any evidence of a thought disorder or suicidal/homicidal ideation. Id. Dr. Moussavian noted that Plaintiff was “intelligent.” Id.

         On December 28, 2010, Roberts completed a CIS Treatment Plan Review Form. Id. at 413-17. The notes on this form indicated that Plaintiff was positive, had remained sober, and was dealing successfully with her stressors without reverting to drug use. Id. at 413. Plaintiff anticipated enrolling in a CASAC program through VESID in January 2011. Id. at 415. Approximately one week later, on January 7, 2011, Plaintiff saw Dr. Moussavian and reported that her medications were helping her cope with her anxiety and depression, and that she was able to concentrate better. Id. at 390. According to a Progress Note prepared by Roberts on January 28, 2011, Plaintiff was approved for a CASAC program and expected to begin the program in February 2011. Id. at 387.

         During a meeting on February 25, 2011, Plaintiff informed Dr. Moussavian that she had stopped taking her medications approximately one week before their meeting; he directed her to resume the regimen. Id. at 384. In the Treating Physician Wellness Plan Report Form from that day, Dr. Moussavian reiterated his diagnoses of depression, GAD, and Opioid Dependence. Id. at 304. Plaintiff was prescribed Ritalin, Lexapro, and Inderal; Risperdal was being discontinued and Abilify was to be started. Id. Mirroring his December 10, 2010 report, Dr. Moussavian indicated that Plaintiff was “unable to work for at least [twelve] months.” Id. at 305.

         On March 28, 2011, Roberts completed another CIS Treatment Plan Review Form. Id. at 408-12. The notes on this form indicated that Plaintiff was no longer on Suboxone and that she had begun to experience menopause. Id. at 408.

         During another appointment on April 7, 2011, Plaintiff told Dr. Moussavian that her medications were proving very helpful. Id. at 380. Plaintiff seemed less anxious and exhibited no signs of a thought disorder. Id. Later that month, Plaintiff told Roberts that she was stressed and unable to sleep in anticipation of an upcoming court appearance concerning child custody. Id. at 378-79.

         On April 29, 2011, Dmitri Bougakov, Ph.D. (“Dr. Bougakov”), conducted a consultative psychiatric examination. Id. at 309-12. Plaintiff reported that she last worked in 2007, as a restaurant cashier, and that she stopped working because of her depression. Id. at 309. She began seeing a psychiatrist (Dr. Moussavian), once a month since October 2010. Id. Her medications at the time were Ritalin, Lexapro, Risperidone, and Abilify. Id. She had difficulty falling asleep, dysphoric moods, loss of interest, low energy, difficulty concentrating, diminished sense of pleasure, and thoughts about sexual assault and rape. Id. She claimed she was forgetful and had poor concentration. Id. She recounted her history of substance abuse, treatment, crime, and incarceration. Id. at 310. She performed her activities of daily living without any assistance. Id. at 311. Dr. Bougakov noted that Plaintiff was cooperative and related adequately. Id. at 310. However, she was lethargic and she made poor eye contact. Id. Her speech was monotonous and rasping, but her expressive and receptive language were adequate. Id. She was oriented to person, place, and time, and her thought processes were coherent and goal oriented. Id. Dr. Bougakov noted that Plaintiff's attention and concentration were mildly impaired. Id. at 311. Her affect was flat and her mood was dysthymic. Id. at 310. She was able to count and perform simple calculations, but made mistakes in doing serial threes. Id. at 311. Her intellectual functioning was in the average to below average range, her knowledge was limited, her memory skills were mildly impaired, and her insight and judgment were fair. Id. Dr. Bougakov diagnosed Opioid Dependency (in early remission), depressive disorder not otherwise specific (“NOS”), and PTSD on Axis I. Id. at 312. He determined that Plaintiff could understand and follow simple directions, perform simple tasks (with some sporadic supervision), maintain attention and concentration, and keep a regular schedule on a limited basis. Id. at 311. As a result of her psychiatric symptoms, she was limited in her abilities to learn new tasks, perform complex tasks, make decisions, relate with others, and deal with stress. Id.

         On or about May 11, 2011, Mariano Apacible, M.D. (“Dr. Apacible”), a New York State psychiatric consultant, completed a Psychiatric Review Technique Form (“PRTF”), based on the evidence in the record, as part of the initial determination of Plaintiff's disability claim. Id. at 317-24. Dr. Apacible found that Plaintiff's depressive disorder, PTSD, and substance abuse did not meet or equal Sections 12.04 (affective disorders), 12.06 (anxiety related disorders), or 12.09 (substance addiction disorders), in the Listings. Id. at 317-20. While he found that Plaintiff had no restrictions on the activities of daily living and no episodes of deterioration, he did find moderate difficulties in maintaining social functioning and mild difficulties in maintaining concentration, persistence or pace. Id. at 321.

         In a Mental Residual Capacity Assessment Form (“MRCAF”), Dr. Apacible assessed that Plaintiff was not significantly limited in: understanding, remembering, and carrying out very short and simple instructions; performing activities within a schedule, maintaining regular attendance, and being punctual within customary tolerances, sustaining an ordinary routine without supervision, working in coordination with or proximity to others without being distracted, interacting appropriately with the public, asking simple questions and requesting assistance, accepting instructions and responding appropriately to criticism from supervisors, getting along with coworkers or peers without distracting them or exhibiting behavior extremes, maintaining socially appropriate behavior and adhering to basic standards of cleanliness and neatness, responding appropriately to changes in the work setting, being aware of normal hazards and taking appropriate precautions, and traveling in unfamiliar places of using public transportation. Id. at 313-14. Dr. Apacible assessed that Plaintiff was moderately limited in remembering locations and work-like procedures, understanding, remembering, and executing detailed instructions, maintaining attention and concentration for extended periods of time, completing a normal workday and workweek without interruptions from psychologically ...

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