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Clarke v. Colvin

United States District Court, S.D. New York

April 3, 2017

IRMASTENE FRANCINE CLARKE, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          CORRECTED OPINION & ORDER [1]

          KATHERINE B. FORREST, District Judge

         Plaintiff Irmastene Francine Clarke seeks review, pursuant to 42 U.S.C. § 405(g), of the decision by defendant Commissioner of Social Security (“Commissioner”), finding that she was not disabled and not entitled to Supplemental Security Income benefits under Title XVI of the Social Security Act. The parties have filed cross-motions for judgment on the pleadings. Plaintiff argues that the Commissioner made several errors in her decision and requests that the decision be reversed and plaintiff's claim be remanded for an award and calculation of benefits, or, in the alternative, for further proceedings. The Commissioner opposes, arguing that the decision was legally correct and supported by substantial evidence. For the reasons set forth below, the Court GRANTS plaintiff Clarke's motion for judgment on the pleadings and DENIES the Commissioner's cross-motion for judgment on the pleadings. As described below, this case is therefore remanded to the Administrative Law Judge for further proceedings consistent with this Opinion.

         I. PROCEDURAL AND FACTUAL BACKGROUND

         A. Procedural Background

         Plaintiff Irmastene Francine Clarke filed an application for Supplemental Security Income (“SSI”) benefits on March 28, 2012. (Tr. 143-151.) The Social Security Administration (“SSA”) denied the application. (Tr. 68-69, 72-83.) Plaintiff then requested an administrative hearing, Tr. 85-86, which took place before an administrative law judge (“ALJ”) on June 3, 2013, Tr. 44-67. The ALJ, before whom plaintiff and her attorney appeared, issued a decision finding that plaintiff was not disabled and not eligible for monthly SSI benefits. (Tr. 24-38.) The ALJ's decision became the final decision of the Commissioner of Social Security (“Commissioner”) when the Appeals Council denied plaintiff's request for review on January 28, 2015. (Tr. 1-6.)

         B. Factual Background[2]

         1. Non-medical evidence

         Plaintiff was born in August 1967. (Tr. 143.) She attended school through the tenth grade (in special education) and had past work experience primarily as a home aid. (Tr. 48, 54, 178-79, 192.) Plaintiff testified that she was disabled due to manic-depressive disorder, schizophrenia, diabetes, asthma, and high blood pressure. Plaintiff reported multiple instances of past sexual and physical abuse. (Tr. 238, 331, 350, 506.) Plaintiff also reported past substance abuse issues. (Tr. 53.)

         2. Medical evidence

         a) Treating physicians

         Dr. Elva Naco is plaintiff's treating psychiatrist at the Center for Urban Community Services (also referred to as the Jericho Project). (Tr. 234-40, 521-25, 539-608.) Dr. Naco saw plaintiff on November 20, 2010, February 19, 2011, and March 19, 2011, and on an approximately monthly basis from May 2012 through March 2013. (Id.)

         Using the multi-axial system of assessment, [3] Dr. Naco diagnosed plaintiff with bipolar disorder, acute stress disorder, and cocaine and alcohol abuse on Axis I; deferred diagnosis on Axis II; diabetes on Axis III; moderate stressors on Axis IV; and a global assessment of functioning score (“GAF”) of 58 on Axis V. (Tr. 240, 558, 563, 569, 576-77, 580, 584, 587-88, 594, 599.) Dr. Naco noted that plaintiff had a history of being abused and poor compliance with her medication. (Tr. 540-41.) Dr. Naco prescribed plaintiff Abilify and Seroquel for mood lability. (Tr. 542, 544, 549.)

         On May 5, 2012, plaintiff reported to Dr. Naco that plaintiff had been clean and sober for six weeks, but that she continued to experience mood swings, poor focus, and periods of irritability. (Tr. 237.) Dr. Naco noted that plaintiff appeared well-groomed and wore casual and clean clothes. (Tr. 238.) Dr. Naco reported that plaintiff experienced ongoing symptoms of insomnia, flashbacks from past rapes, decreased focus, anger, and mood swings. (Id.)

         On May 5, 2012, Dr. Naco also detailed her medical opinion on the severity of plaintiff's bipolar disorder in a Psychiatric/Psychological Impairment Questionnaire. Dr. Naco noted clinical evidence of poor memory, sleep and mood disturbances, substance dependence, intrusive recollections of traumatic experience, difficulty concentrating, and hostility/irritability. (Tr. 275.) Dr. Naco assessed that plaintiff had no limitations of her abilities to understand, remember and carry out one or two step instructions; ask simple questions, or request assistance; be aware of normal hazards; take appropriate precautions; and travel to unfamiliar places or take public transportation. (Tr. 277-79.) She assessed that plaintiff had mild limitations of her abilities to make simple work-related decisions. (Tr. 278.)

         Dr. Naco further opined that plaintiff was markedly limited - defined as being effectively precluded from performing the activities in a meaningful manner - in her ability to perform activities within a schedule, maintain regular attendance, and be punctual with customary tolerance; work with or near others without being distracted; set realistic goals or make plans independently; and complete a workweek without interruption from psychologically based symptoms. (Tr. 276-279.) Dr. Naco assessed that plaintiff was moderately limited - defined as significantly limited but not totally precluded - in her ability to remember locations and work-like procedures; understand, remember, and carry out detailed instructions; maintain attention and concentration for extended periods; sustain ordinary routine without supervision; interact appropriately with the general public; accept instructions and respond appropriately to criticism from supervisors; get along with co-workers or peers without distracting them or exhibiting behavioral extremes; maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness; and respond appropriately to changes in the work setting. (Tr. 276-78.)

         On May 5, 2012, Dr. Naco also completed a separate questionnaire for the Social Security Administration (“SSA”) opining that plaintiff was unable to work. Dr. Naco further opined that plaintiff had limited understanding and memory due to poor focus and limited sustained concentration and persistence, social interaction, and adaptation due to mood swings, racing thoughts and irritability. (Tr. 514-19, duplicated at Tr. 609-12, 615.) In this report, Dr. Naco included mental status findings, indicating that plaintiff's thought process was goal-directed, but that plaintiff's mood was irritable and angry at times; she had occasional mood swings and her affect was reactive. (Tr. 616.) Plaintiff's ability to perform calculations was fair due to diminished focus. (Id.) Plaintiff's insight and judgment were impaired at times. (Id.) Plaintiff was maintained on Seroquel and supportive therapy. (Tr. 617.) Her illness was chronic, but “better at this time.” (Id.)

         On May 19, 2012, Dr. Naco responded to the SSA's request for specific examples to support her conclusion that plaintiff was limited with respect to her abilities in understanding and memory, sustained concentration, social skills, and adaptation. (Tr. 497, duplicated at Tr. 603.) Dr. Naco responded that her report was based upon her own observations that plaintiff was “quite hyper” and needed redirection and was “easily irritable, nervous, and impatient” during severe mood swings, causing problems with focus and memory. (Id.) She also stated that plaintiff could be quite sensitive to minor criticisms “and has had issues with staff members.” (Id.) On June 9, 2012, Dr. Naco continued to report that plaintiff was unable to work. (Tr. 600.)

         On October 20, 2012, Dr. Naco completed a FEGS WeCare Medical report. (Tr. 234.) Plaintiff's diagnoses were bipolar disorder, PTSD, and cocaine abuse in partial remission. (Id.) Plaintiff had mood swings, irritability, flashbacks of past rapes, low energy level, and a diminished memory. (Id.) Plaintiff was on Seroquel and Ambien. (Tr. 234.) Her illnesses were chronic with a relapsing and remitting course. (Id.) Dr. Naco reported that plaintiff was unable to work for at least 12 months.

         On March 2, 2013, Dr. Naco completed a second Psychiatric/Psychological Impairment Questionnaire that recorded findings generally unchanged from the first questionnaire completed on May 5, 2012. (Tr. 618-625.) Dr. Naco reported that plaintiff's use of drugs and/or alcohol was a symptom of her condition or form of self-medication, and that plaintiff's disability was independent of any substance use. (Tr. 626.)

         From October 2012 through April 2013, plaintiff also saw Eloisa Negron Rodriguez, a licensed social worker, in the medical office of Dr. Indrani Persaud, plaintiff's primary care physician. (Tr. 638-39, 642-43, 647-56, 663, 686, 695, 715-18, 721.) Ms. Rodriquez saw plaintiff approximately monthly, providing therapeutic counseling for complaints of depression.

         In addition, plaintiff was seen by Dr. Persaud for medical care. Dr. Persaud saw plaintiff anywhere from once a month to once in six months. (Tr. 242.) On July 18, 2012, Dr. Persaud completed a “Multiple Impairment Questionnaire” diagnosing plaintiff with uncontrolled diabetes, asthma, bipolar disorder, schizophrenia, and bilateral leg pain. (Id.) Dr. Persaud noted that plaintiff had symptoms of daily bilateral leg pain. (Tr. 243.) According to Dr. Persaud, plaintiff's pain was severe, rating it a 9 on a scale of 1 to 10. (Tr. 244.) Dr. Persaud did not list fatigue as a symptom, but when asked to rate it, she stated that it was moderately severe - an 8 on a scale of 1 to 10. (Tr. 244.) Dr. Persaud noted that medication did not fully relieve plaintiff's pain. (Id.)

         Dr. Persaud opined that in an eight-hour workday, plaintiff could sit for one hour and stand/walk one hour. (Id.) She would have to get up from the sitting position every thirty minutes or so, and could sit back down after another 30 minutes. (Id.) She could lift up to ten pounds. (Tr. 245.) Dr. Persaud assessed that due to pain and stiffness in plaintiff's fingers and hands, plaintiff had moderate limitations of grasping, turning, and twisting objects, fine manipulation and reaching, including overhead. (Tr. 246.)

         Dr. Persaud stated that plaintiff's condition would interfere with her ability to keep her neck in a constant position and that her symptoms would interfere with her attention and concentration. (Tr. 246-47.) Stress impacted plaintiff's symptoms, and according to Dr. Persaud, she was therefore unable to tolerate even low stress work. (Tr. 247.) Dr. Persaud indicated that plaintiff would regularly need to take unscheduled breaks of one hour, Tr. 247, and miss work more than three times a month, Tr. 248. In addition, from a check off list, Dr. Persaud indicated that plaintiff had psychological limitations; had to avoid noise, fumes, gases, temperature extremes, humidity, dust, and heights; had limited vision; and was unable to pull, kneel, bend or stoop. (Tr. 248.)

         On October 23, 2012, Dr. Persaud completed a medical report for the FEGS WeCare program. (Tr. 232-33.) She diagnosed plaintiff with diabetes, asthma and bipolar disorder. (Tr. 232.) She noted that plaintiff was alert and oriented times three (she had orientation of time, place, and person). (Tr. 232.) Plaintiff had a normal physical examination with the exception of bilateral expiratory wheezing. (Tr. 232.) Despite medication, her diabetes was uncontrolled. (Tr. 232.) Plaintiff's asthma was mild and persistent. (Tr. 233.) Her bipolar disorder was in “remitting course.” (Tr. 233.) Dr. Persaud indicated that plaintiff had no functional limitations, but that she was unable to work for at least twelve months due to depression and mood swings. (Tr. 233.)

         b) Consulting medical sources

         On May 14, 2012, Howard Tedoff, Ph.D. conducted a consultative psychiatric assessment of plaintiff at the request of SSA. (Tr. 505-08.) Plaintiff reported sobriety for the past year. (Tr. 506.) She complained of hearing voices and seeing faces. (Id.) Plaintiff stated that she could only read at a third grade level and had only limited multiplication skills. (Id.)

         Plaintiff was cooperative during a mental status examination. (Id.) Her manner of relating, social skills, and overall presentation were adequate. (Id.) Plaintiff was dressed and groomed casually, her posture and gait were normal, and she made appropriate eye contact. (Id.) Plaintiff spoke intelligibly and in a relevant and goal-directed manner and conversed interactively. (Id.) Plaintiff's thought processes appeared coherent and “to some extent” goal-directed. (Tr. 507.) Dr. Tedoff noted that plaintiff had a history of auditory and visual hallucinations that were in remission on medication. (Id.) Plaintiff denied suicidal ideation. (Id.) When not on medication, plaintiff engaged in self-hurting behavior. (Id.)

         Plaintiff was tearful about her history; her affect was congruent with her speech and thought content. (Id.) Plaintiff's mood was euthymic on medication, but without medication, psychotic features prevailed. (Id.) On medication, plaintiff was oriented times three. (Id.) Plaintiff's attention and concentration were mildly impaired; she had difficulty with calculations and counted up instead of down in doing serial threes. (Id.) Upon recent and remote memory skills testing, plaintiff could recall six digits forward, three digits in reverse order and recall three out of three items after five minutes. (Id.) ...


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