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Ramlakhan v. Colvin

United States District Court, S.D. New York

March 31, 2017





         Plaintiff Melissa Ramlakhan ("Ramlakhan") commenced this action under 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 ("Commissioner") denying her application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Ramlakhan raises two issues: (1) the Administrative Law Judge ("ALJ") failed to weigh the opinion of her treating physicians properly; and (2) the ALJ failed to consider the side effects of Ramlakhan's medications. (Doc. No. 18 (Mem. of Law in Supp. Of Pl's Mot. for J. on the Pleadings ("Pl Mem.")) at 14.) On March 17, 2016, the Parties consented to the jurisdiction of the undersigned, pursuant to 28 U.S.C. § 636(c). (Doc. No. 13.)

         On April 20, 2016, Ramlakhan filed a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, asking the Court to reverse the decision of the Commissioner and remand for further proceedings. (Doc. No. 17.) On May 17, 2016, the Commissioner cross-moved for judgment on the pleadings pursuant to Rule 12(c), asking the Court to affirm the Commissioner's decision and dismiss the Complaint. (Doc. No. 20 (Mem. of Law in Supp. Of Def.'s Mot. for J. on the Pleadings ("Def. Mem.")) at 1.) For the reasons set forth below. Ramlakhan's motion is GRANTED, the Commissioner's cross-motion is DENTED. and the case is REMANDED for further proceedings before the Social Security Administration.


         A. Procedural History

         On May 22, 2012, Ramlakhan filed for DIB and SSI benefits, alleging disability beginning on April 2, 2012. (Tr. of Admin. Proceedings ("Tr.") at 388-401, 407.) The Social Security Administration initially denied Ramlakhan's application on August 13, 2012. (Tr. at 310-31.) On September 10, 2012, Ramlakhan filed a written request for a hearing before an ALJ. (Id. at 332-33.) On September 25, 2013, Ramlakhan appeared before ALJ Mark Solomon, who adjourned the proceedings to allow Ramlakhan to get an attorney. (Id. at 264-70.) On January 28, 2014, Ramlakhan appeared with counsel for a second hearing before ALJ Soloman. (Id. at 271-309.) On March 26, 2014, ALJ Soloman found that Ramlakhan was not disabled under §§ 216(i) and 223(d) of the Social Security Act. (Id. at 74-89.) On April 2, 2014, Ramlakhan requested review of the ALJ's decision. (Id. at 72-73.) On September 25, 2015, the Appeals Council denied Ramlakhan's request for review, therefore making the ALJ's decision final. (Id. at 1-4.) Ramlakhan initiated this action on October 15, 2015. (Doc. No. 1.)

         B. The ALJ Hearing and Decision 1.Administrative Hearing Testimony and Other Sworn Statements

         On September 25, 2013, ALJ Soloman asked a few questions before adjourning to allow Ramlakhan to get counsel. (Tr. at 264-70.) For example, the ALJ asked Ramlakhan about an operation that she had in May of 2013. Ramlakhan testified that she had had arthroscopic surgery on her left knee, and was receiving mental health treatment from her psychiatrist, Dr. Ghumman. (Id. at 268-69)

         When Ramlakhan returned with counsel on January 28, 2014, she testified that she was born on December 21, 1975, completed her undergraduate degree in 2003, and was last employed at Bobby Van's Steakhouse. (Tr. at 277.) In 2003, after the birth of her second child, she had a "tummy tuck" operation in order to sew back the muscles in her stomach to support her back. (Id. at 284.) Ramlakhan had worked full-time as a server at Bobby Van's Steakhouse from November 10, 2010, to March 29, 2012. (Id. at 277-78.) She had previously worked as a server at Xaviars X20 on the Hudson, as a hostess at the Blair Perrone Steakhouse, as a mail carrier for the United States Postal Service, and as a member of a prostitution ring from 1991 to 2005. (Mat 280-83, 460-61.)

         Ramlakhan was terminated from Bobby Van's Steakhouse because she had a verbal confrontation with another employee that had interrupted the lunch service, and that her former manager had referred to as a "meltdown." (Id. at 278.) Ramlakhan testified that by the time she was terminated, "[she] couldn't even lift [her] left arm anymore in the way that a person would hold trays of food." (Id. at 285.) Soon after, she applied for unemployment benefits, which were initially denied, but granted on appeal. Id. She collected unemployment benefits for the full period of 99 weeks. (Id. at 279.)

         Ramlakhan also testified that she received substance abuse treatment for alcohol, marijuana, and pain pills during and after the time she began receiving unemployment benefits, and is currently undergoing treatment at the Albert Einstein College of Medicine ("Einstein"). (Id. at 279, 286.) Additionally, she testified that she uses a back brace and occasionally uses a cane, and that she lives with her mother, step-father, and two children-ages twelve and eighteen. (Id. at 285-86.)

         Ramlakhan travels by herself, but sometimes needs assistance putting on her clothes, putting together her toiletries for bathing, turning on the shower, and putting on her shoes. (Tr. at 287.) She does not do any household chores without assistance. (Id. at 288.) This includes cooking, cleaning, mopping, or dusting. Id. Ramlakhan cannot perform tasks that require the use of her hands for more than ten minutes, including washing dishes or typing. Id. She alternates between sitting and standing every two to five minutes because of pain. (Id. at 292-293.) Her back pain makes it difficult for her to concentrate on reading, writing, or accomplishing tasks. (Id. at 295.) To soothe her back pain, Ramlakhan will lie down once or twice per day with hot pads on her back. (Id. at 296.)

         Ramlakhan's days are spent reminding her children of daily tasks, such as brushing teeth, taking vitamins, and reminding her younger daughter not to forget her book bag. (Id. at 289.) She also checks up on her ninety-nine-year-old grandmother "maybe twice a week." (Id. at 290.) Additionally, Ramlakhan goes to therapy at Next Steps three days a week. Id. Ramlakhan testified that once or twice per week she does not leave her home, and stays in her room. (Id. at 299.)

         Ramlakhan has a panic attack at least once per day. (Id. at 297.) The panic attacks can be "anywhere from 10 minutes to hours, " and can be triggered when remembering something in her past. Id. Memories that trigger panic attacks range from her pimp and girls she used to work with, to falling out of the window of her apartment complex at fifteen years old. Id. The latter incident occurred in 1991, when Ramlakhan attempted to flee after her stepfather argued with and strangled her. (Id. at 294, 449-50.) Ramlakhan plunged "at least seven stories while trying to scale down the side of her building on two bed sheets draped out her window." (Id. at 449.) "[S]he apparently slipped or lost grip of the sheets and fell, reportedly cracking ribs and breaking her leg and possibly suffering internal injuries." (Tr. at 450.)

         Following Ramlakhan's testimony, vocational expert Dr. Gerald Belchick testified about Ramlakhan's capability to work, and what type of work she is able to do. (Id. at 300.) The ALJ asked Dr. Belchick about a hypothetical claimant with Ramlakhan's age, education, and work experience whose work would be limited to:

(1) sedentary work with the ability to sit for six hours, stand or walk for up to two hours; (2) lifting and carrying up to 10 pounds occasionally and five pounds frequently; (3) no climbing of rope, ladders and scaffolds; (4) occasionally climbing of ramps and stairs; (5) occasionally balancing, stooping, kneeling, crouching, and crawling; (6) avoiding work at unprotected heights and with hazardous machinery; (7) remembering, understanding, and carrying out simply instructions; (8) maintaining attention and concentration for "rout work;" (9) maintaining a regular schedule; (10) performing a low stress job, defined as one with only simply decision making, and no close interpersonal contact with the general public.

(Id. 303-04.) Using the Dictionary of Occupational Titles ("DOT") [1] from the U.S. Department of Labor, Dr. Belchick testified that Ramlakhan could be a bench hand assembler, with 218, 000 jobs in the national economy; surveillance system monitor, with 81, 000 jobs in the national economy; or an addresser, with 196, 000 jobs in the national economy. (Id. at 304-06.) Dr. Belchick testified that if Ramlakhan is found to be credible in her ability to stand or sit for no more than five minutes, or if claimant were to miss more than five percent of work, all of the proposed jobs would be void. (Id. at 307.)

         2. Medical Evidence

         a. Consulting Psychiatrist Arlene Broska, Ph.D.

         On July 30, 2012, Dr. Arlene Broska, a psychologist, evaluated Ramlakhan at the ALJ's request. (Tr. at 496-500.) Dr. Broska found that Ramlakhan's "demeanor and responsiveness to questions w[ere] cooperative. Her manner of relating, social skills, and overall presentation were adequate." (Tr. at 498.) Ramlakhan's affect was dysphoric and her mood was dysthymic. Id. Ramlakhan's "thinking was coherent and goal directed with no evidence of hallucinations, delusions, or paranoia in the evaluation setting." Id. Ramlakhan's insight and judgment were poor. (Id. at 499.)

         Vocationally, Ramlakhan appeared to be able to "follow and understand simple directions and instructions[, ...] perform simple tasks independently[, ...] maintain attention and concentration ... [but] [s]he may not make appropriate decisions, relate adequately with others, or appropriately deal with stress." Id. Dr. Broska diagnosed Ramlakhan with depressive disorder, and polysubstance abuse and dependence that is in early remission. (Id. at 500.) Additionally, Dr. Broska diagnosed Ramlakhan with personality disorder, and noted her back, shoulder, and ankle pain. Id.

         b. Consulting Examiner Marilee Mescon, M.D.

         On July 30, 2012, Dr. Marilee Mescon met Ramlakhan for a consultative internal medicine examination at the Commissioner's request. (Id. at 490-95.) Ramlakhan's chief complaints were "[l]eft knee pain; multiple trauma; left shoulder pain; [and a] history of marijuana and alcohol abuse." (Id. at 490.) Dr. Mescon reported that the "pain scale for the left knee goes from a 10/10 to 7/10 with analgesic medications. She describes the pain in her left knee as sharp and aching, sometimes the left knee gives out and has falling [sic] only once." Id. Ramlakhan described the "pain in her back as burning and sticking and pinching, on a scale of 10/10 going to 8/10 with analgesic medications." (Tr. at 490.) Additionally. Ramlakhan described the "pain in [her] left shoulder as sharp, aching, and sticking on a scale of 10/10 going to 7/10 with analgesic medications." (Id. at 491.)

         Ramlakhan informed Dr. Mescon that she was able to shower, bathe, and dress. (Id. at 492.) On examination, Ramlakhan's gait and stance were normal, she could squat halfway, and she could walk on her heels and toes. (Id. at 492.) Ramlakhan needed no help changing for her examination or getting on and off the examination table. She was able to rise from a chair without difficulty. Id. In Dr. Mescon's musculoskeletal assessment, Ramlakhan's cervical spine showed full flexion.[2] (Id. at 493.) Dr. Mescon found full range of motion ("ROM") in Ramlakhan's elbows, forearms, wrists bilaterally, hips, and knees.[3] (Id. at 493-94.)

         Dr. Mescon reviewed an x-ray of Ramlakhan's lumbosacral spine, which showed that Ramlakhan was "[s]tatus post surgery following a compression fracture." (Id. at 494-95.) Dr. Mescon's diagnosis was that Ramlakhan had left knee injury; a left shoulder injury; multiple trauma after suicidal gesture; and an old compression fracture on her back. (Id. at 494.) Dr. Mescon's stated that her "[l]ong-term prognosis is fair to poor." Id. On the basis of her examination findings. Dr. Mescon stated that "there [were] no limitations in [Ramlakhan's] ability to sit, but her capacity to stand for long periods of time, climb, push, pull, or carry heavy objects would be moderately to severely limited because of all of [Ramlakhan's] medical problems." (Tr. at 494.)

         c. Treating Psychiatrist Daniel Cohen, M.D.

         On July 12, 2012, Dr. Daniel Cohen, the Medical Director at the Metropolitan Center for Mental Health, completed a mental evaluation of Ramlakhan. (Id. at 485-89.) Dr. Cohen noted that he had first seen Ramlakhan on April 19, 2012. (Id. at 485.) Dr. Cohen's treating diagnoses are post-traumatic stress disorder, generalized anxiety disorder with agoraphobia, and recurrent major depressive disorder. Id. Dr. Cohen noted that Ramlakhan "continues to suffer from panic attacks, restless sleep, tension, unreasonable worry, flash backs, sweating, substance abuse, impulse behavior, with a history of questionable decision making." Id.

         Ramlakhan "presented as neat and cooperative, [and her] speech was relaxed, [and] logical, [yet] overwhelmed." (Id. at 487.) Ramlakhan's mood was moderately depressed and expansive. Id. Ramlakhan was oriented, her memory was intact, and her ability to perform calculations was appropriate. Id. Dr. Cohen noted "average insight, [and a] history of questionable decision making." Id.

         Ramlakhan informed Dr. Cohen that she was "able to travel independently, do household chores, groom herself, prepare meals, and do laundry." (Id. at 488.) Ramlakhan told Dr. Cohen that she worked "as a waitress, and discussed having issues with her supervisors and work colleagues." Id. Dr. Cohen noted that suicidal features were present, and that Ramlakhan had four prior attempts, in 1992, 1999, 2002, and 2004. Id. Based upon the medical findings provided in his report, Dr. Cohen found Ramlakhan was "very limited" in her ability to do work related mental activities. Id.

         d. Treating Physician Sireen Gopal, M.D.

         On July 9, 2013, Dr. Sireen Gopal treated Ramlakhan for back pain. (Tr. at 814-16.) Ramlakhan's gait was normal and her cardiovascular system had a regular rate and rhythm, but a palpation revealed tenderness in her bilateral lumbar facet joints and sacroiliac ("SI") joints. (Id. at 814.) Dr. Gopal conducted a negative bilateral SLR test, and found Ramlakhan's spine was normal. Id. Ramlakhan's upper and lower extremities were bilateral, and her deep tendon reflexes were bilaterally symmetrical. Id.

         On August 9, 2013, Dr. Gopal met with Ramlakhan because Ramlakhan was having "pain while washing dishes." (Id. at 805.) Palpation revealed "paraspinal tenderness, moderate aggravat[ion] at end of the day." Id. Ramlakhan showed a decreased ROM that causes pain, lumbar instability, and a reduced motor strength of 4-/5.[4] Id. On August 21, 2013, Dr. Gopal met with Ramlakhan for "shooting pain down the legs." (Id. at 803.) Palpation revealed that there was moderate tenderness present, and Ramlakhan's back stability was fair. Id. On September 26, 2013, Dr. Gopal's palpation findings included tenderness of the lumbar facet joints and SI joints, but Ramlakhan's gait was normal, and the SLR test was negative bilaterally. (Id. at 801.) In addition, Dr. Gopal ordered a magnetic resonance imaging ("MRI") scan for Ramlakhan. (Id. at 802.)

         On October 22, 2013, the "MRI of the lumbar spine was performed with a Philips Panorama midfield open scanner." (Id. at 819.) The MRI reoort stated that Ramlakhan's himhar spine was "significantly limited due to [a] susceptibility artifact related to [Ramlakhan's] metallic surgical hardware. There is mild levoscoliosis of the lumbar spine. There is [a] mild chronic compression fracture involving the L2 vertebreal body. No acute compression fractures [were] seen." (Tr. at 819.)

         On January 20, 2014, Dr. Gopal submitted a medical source statement. (Id. at 822-28.) Dr. Gopal noted that Ramlakhan was diagnosed with "lumbar radiculopathy, lumbosacral arthritis, postlaminect synd/lumbar, sacroilitis, and unspecified myalgia and myositis." (Id. at 822.) Dr. Gopal noted Ramlakhan's pain is located in her "mid to low back, radiating into bilateral buttocks and hips, and into the front of the bilateral thighs." Id. Ramlakhan's symptoms were described as a constant "cramping, sharp, [and] aching" pain. Id. Dr. Gopal marked down that depression and anxiety affect Ramlakhan's pain, and that she had a "marked limitation" in her ability to deal with work stress. Id. Dr. Gopal also noted that Ramlakhan is constantly experiencing "pain severe enough to interfere with attention and concentration." Id.

         Dr. Gopal opined that Ramlakhan could sit for a maximum of fifteen continuous minutes at a time, and for a total of one hour during an eight hour day. (Id. at 823-24.) Dr. Gopal wrote that Ramlakhan could stand or walk for a maximum of fifteen continuous minutes at a time, but did not specify the total amount of time allowable during an eight hour workday. (Id. at 824-25.) Dr. Gopal also noted that Ramlakhan would need to lie down or recline for a total of one hour during the workday. (Id. at 825.) Dr. Gopal opined that Ramlakhan could occasionally lift up to ten pounds, but never more than that. (Id. at 826.) Ramlakhan could occasionally balance, rotate her neck, repetitively use her hands, but she could never stoop.[5] (Id. at 826-27.) Dr. Gopal estimated that on average Ramlakhan would be absent from work "more than 1 times a month" (Id. at 828.)

         h. Diagnostic ...

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