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Anderson v. Colvin

United States District Court, E.D. New York

March 28, 2017

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


          PAMELA K. CHEN, United States District Judge

         Plaintiff David Anderson (“Plaintiff”) brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of the Social Security Administration's (“SSA”) denial of his claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). The parties have cross-moved for judgment on the pleadings. (Dkt. 9.) Plaintiff seeks reversal of the Acting Commissioner of Social Security's (“Commissioner”) denial of benefits, and the granting of other relief the Court may find just. The Commissioner seeks affirmance of the denial of Plaintiff's claims. For the reasons set forth below, the Court DENIES the Commissioner's motion for judgment on the pleadings and GRANTS the Plaintiff's cross-motion.



         Plaintiff filed applications for DIB and SSI on September 28, 2012. (Tr. 142.)[1] Plaintiff claimed disability beginning November 30, 2007, due to psychosis and major depressive disorder. (Tr. 142-43.) On January 30, 2013, SSA denied both of Plaintiff's claims. (Tr. 46-51.) Plaintiff requested a hearing before an administrative law judge (“ALJ”) on March 5, 2013. (Tr. 52.) ALJ Mark Solomon held a hearing on May 6, 2014, where Plaintiff, accompanied by his non-attorney representative, [2] and a vocational expert testified. (Tr. 29-43.) About a month later, by a decision dated June 3, 2014, the ALJ denied Plaintiff's claims. (Tr. 15-25.) On July 7, 2014 an attorney was appointed to represent Plaintiff. (Tr. 12.) The decision of the ALJ became the final decision of the Commissioner on November 10, 2015, when the Appeals Council denied Plaintiff's request for review. (Tr. 1-4.) Plaintiff timely filed this action on November 23, 2015. (Dkt. 1.)


         A. Treating Physicians

         1. St. Luke's-Roosevelt Hospital (“St. Luke's”) Emergency Department

         Plaintiff visited the emergency department at St. Luke's on September 18, 2012, complaining of depression. (Tr. 183-85.) Glenna Edwards, RN, assessed Plaintiff and reported that he was alert and oriented in three dimensions, and had not recently tried to hurt himself. (Tr. 184.) She reported that Plaintiff denied suicidal/homicidal ideation but heard voices singing. (Id.) She wrote that his emotional state was a barrier to his education. (Id.) Plaintiff disclosed that two of his brothers had schizophrenia. (Id.)

         Dr. Michael Tanzer diagnosed Plaintiff with major depression. (Tr. 185.) He discharged Plaintiff in stable condition, but noted that acuity was Level III, which meant urgent. (Id.)

         On September 24, 2012, Plaintiff returned to St. Luke's, complaining about depression and paranoia. (Tr. 187.) Steven Curry, RN, assessed Plaintiff as alert and oriented in three dimensions, with cooperative behavior. (Id.) RN Curry reported that Plaintiff had a history of depression, and that his emotional state was a barrier to his education. (Id.) Once again, Plaintiff denied having tried to hurt himself or having suicidal thoughts. (Id.) Plaintiff reported having been on medication for sleep and paranoia, but could not remember the name of the medications. (Id.) Dr. Rachna Kenia diagnosed Plaintiff with psychotic reactive depression. (Tr. 186.) She admitted him to the psychiatric ward, where he appeared to stay until September 27, 2012. (Tr. 187, 190.)

         2. Don Cohen, LCSW

         Upon Plaintiff's discharge from St. Luke's on September 27, 2012, Don Cohen, LCSW, wrote a letter stating that Plaintiff had been in the hospital's care from September 24 through September 27, 2012, but was “fit and able to return to work immediately.” (Tr. 190.)

         3. Dr. Daniel Cohen and Deborah Morgan, LCSW

         On October 10, 2012, Plaintiff met “briefly” with Deborah Morgan, LCSW, at St. Luke's. (Tr. 203.) LCSW Morgan wrote that Plaintiff was able to engage, that his affect was restricted, and that his mood was normal. (Id.) She wrote that Plaintiff lived with his sister, who helped him with money for food. (Id.) LCSW Morgan offered to write a letter in support of Plaintiff's SSI application. (Id.)

         In a letter dated October 11, 2012, Plaintiff's treating psychiatrist, Dr. Daniel Cohen, and LCSW Morgan, his treating social worker, wrote that Plaintiff was receiving outpatient psychiatric services at St. Luke's with a diagnosis of Major Depressive Disorder, Recurrent with Psychotic Features. (Tr. 191.) Plaintiff's recent hospitalization had been a result of “bizarre thought, auditory hallucinations, mood and sleep disturbance.” (Id.) As a result, Plaintiff had been prescribed 20mg of Zyprexa and 10mg of Prozac, and was receiving monthly supportive therapy from both Dr. Cohen and LCSW Morgan. (Id.) Dr. Cohen and LCSW Morgan concluded that Plaintiff had no benefits, and they “strongly recommend[ed] he be awarded SSI based on the severity of his mental illness.” (Tr. 191.)

         On November 14, 2012, Plaintiff visited Dr. Cohen at St. Luke's. (Tr. 193.) In a record of the same date, Dr. Cohen wrote that Plaintiff likely had schizophrenia, and had reported a ten-year decline and “depression, ” including auditory hallucinations. (Id.) Plaintiff denied having attempted suicide, and admitted to cocaine and cannabis use in the past. (Id.) Dr. Cohen described Plaintiff as having “[n]o evidence of acute psychosis or depression” and “sleeping well.” (Id.) His diagnoses were listed as “Major Depressive Disorder, Recurrent Type with Psychotic Features” as of October 11, 2012, and “Schizophrenia, Paranoid Type” as of November 14, 2012. (Tr. 197.) In the section titled “Comprehensive Mental Status, ” Dr. Cohen indicated that Plaintiff had no threatening behavior, appropriate eye contact, no signs of agitation, and appropriate ambulation. (Tr. 194.) He also indicated on the form that Plaintiff's mood was both “pleasant” and “tense, ” and his affect was “blunted.” (Id.) He wrote that Plaintiff was able to concentrate, had intact judgment and memory function, and insight. (Tr. 195.) In addition, Dr. Cohen wrote that Plaintiff was “[i]mproving, stable on medications” and should continue with his medications and follow up with Dr. Cohen and LCSW Morgan in a month. (Tr. 197-98.) Dr. Cohen wrote that Plaintiff had not reached “optimum improvement.” (Tr. 98.)

         Also on November 14, 2012, Plaintiff met again with LCSW Morgan. (Tr. 199.) He reported that the bus and subway being out of service was a bit depressing for him. (Id.) He denied auditory hallucination of voices, but stated that he heard music sometimes. (Id.) He did not present with any delusions during the session, and appeared to be engaging in treatment with LCSW Morgan and Dr. Cohen. (Id.) Plaintiff spoke about reading the newspaper and watching the news, and he agreed to try “making small steps to lif[t] his mood” such as going to the library and taking walks. (Id.) LCSW Morgan noted no significant changes in his mental status or behavior, wrote that Plaintiff was sleeping “ok” and reported taking his medication. (Id.) She also wrote that he did not have thoughts of self-harm or suicide. (Id.)

         Dr. Cohen filled out a Psychiatric Medical Report on March 21, 2013. (Tr. 234.) He again reported that Plaintiff had paranoid schizophrenia and was on Prozac and Zyprexa. (Id.) Plaintiff appeared calm, pleasant, and cooperative. (Id.) Plaintiff reported having audio hallucination in which he heard birdcalls. (Id.) His mood was “depressed” and his affect was “constricted/blunted.” He also reported that Plaintiff had “below average” sensorium and intellectual functions with regard to information. (Tr. 235.) His memory was intact, his attention and concentration were adequate, and he was oriented in three dimensions. (Id.) Regarding activities of daily living, Plaintiff stated that he spent his days reading, watching television, and going for walks, and he had limited to no social interaction. (Tr. 236.)

         Dr. Cohen reported in the March 21, 2013 Psychiatric Medical Report that Plaintiff was “unable” to function in a work setting. (Tr. 236.) In his Medical Source Statement of Ability to Do Work-Related Activities (Mental) Report of the same date, Dr. Cohen stated that Plaintiff had a moderate restriction in understanding and remembering simple instructions, a marked restriction in carrying out simple instructions, and extreme restrictions in his ability to make judgments on simple work-related decisions, to understand and remember complex instructions, and to make judgments on complex work-related decisions. (Tr. 238.) He reported that Plaintiff had moderate restrictions in interacting appropriately with the public, marked restrictions in interacting appropriately with supervisors and co-workers, and extreme restrictions responding appropriately to usual work situations and to changes in a routine work setting. (Tr. 239.)

         B. Consultative Source: G. Kleinerman

         Psychiatric medical consultant G. Kleinerman[3] filled out a Psychiatric Review Technique report on December 20, 2012, indicating that Plaintiff was being evaluated for “Schizophrenic, Paranoid and other Psychotic Disorders” as well as “Affective Disorders.” (Tr. 206.) Kleinerman checked off the box indicating that “A medically determinable impairment is present that does not precisely satisfy the diagnostic criteria” in the form. (Tr. 208.) He noted that Plaintiff's primary diagnosis was “Schizophrenia, paranoid type” and this diagnosis was substantiated by pertinent symptoms, signs, and laboratory findings, although there were currently no signs of psychosis. (Id.) Kleinerman also noted that Plaintiff's affect disorder, Major Depressive Disorder, was also substantiated. He wrote that Plaintiff acknowledged cocaine and cannabis use. (Tr. 214.) Plaintiff was assessed to only have “mild” limitations in restrictions of activities of daily living, difficulties in maintaining social functioning, and difficulties in maintaining concentration, persistence or pace. (Tr. 216.) Kleinerman reported that the evidence did not establish the presence of paragraph C criteria of the listings. (Tr. 217.)

         On December 20, 2012, Kleinerman also filled out a Mental Residual Functional Capacity Assessment, which indicated that Plaintiff was not significantly limited in any of the designated categories, but suffered a moderate limitation in “the ability to set realistic goals or make plans independently of others.” (Tr. 222.) After briefly summarizing the reports from Dr. Cohen and LCSW Cohen, Kleinerman concluded that Plaintiff “retains the capacities for remembering, understanding and carrying out instructions, for relating appropriately under conditions of reduced interpersonal contact, and for exercising judgment appropriately in the workplace.” (Tr. 223.)

         III. ...

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