United States District Court, E.D. New York
OPINION AND ORDER
L. IRIZARRY, Chief United States District Judge
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. 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
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.
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
Non-Medical and Self-Reported Evidence
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. 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.
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.
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.
Plaintiff's Testimony Before the ALJ
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.
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.
Vocational Expert's Testimony Before the ALJ
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.
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, ” 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, ” 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, ” which had 230, 000 jobs available
nationally and 5, 000 regionally. Id. at 61-62.
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.
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.
Summary of the Medical Evidence
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. 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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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