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Vishner v. Colvin

United States District Court, W.D. New York

April 24, 2017



          HON. MICHAEL A. TELESCA United States District Judge

         I. Introduction

         Represented by counsel, Victoria A. Vishner (“plaintiff”) brings this action pursuant to Title II of the Social Security Act (“the Act”), seeking review of the final decision of the Commissioner of Social Security (“the Commissioner”) denying her application for disability insurance benefits (“DIB”). The Court has jurisdiction over this matter pursuant to 42 U.S.C. § 405(g). Presently before the Court are the parties' cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons discussed below, plaintiff's motion is granted to the extent that this case is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order.

         II. Procedural History

         The record reveals that in June 2009, plaintiff (d/o/b May 14, 1974) applied for DIB, alleging an amended onset date of disability as of August 19, 2009. After her application was denied, plaintiff requested a hearing, which was held before administrative law judge Diana Weaver on February 4, 2011, in Phoenix, Arizona, where plaintiff lived at the time. The ALJ issued an unfavorable decision on February 22, 2011. On March 29, 2012, the Appeals Council reversed the ALJ's decision and remanded the matter with specific instructions, including instructions to give further consideration to the examining source opinion of Dr. Drake and the nonexamining opinion of Dr. Jonathan Zuess, and to obtain supplemental evidence from a vocational expert (“VE”) to clarify the effect of the assessed limitations on plaintiff's occupational base.

         On remand, plaintiff's case was assigned to ALJ David Lewandowski (“the ALJ”), who held a hearing in Buffalo on August 8, 2012. In a decision dated September 10, 2012, the ALJ denied plaintiff's application. The Appeals Council denied review of that decision and this timely action followed.

         III. Summary of the Evidence

         Medical treatment records prior to the relevant time period reveal that plaintiff had a longstanding diagnosis of bipolar disorder, two prior suicide attempts, and a history of self-cutting. On August 19, 2009, the amended alleged onset date, plaintiff presented to psychiatrist Dr. Gorky Herrera after calling an emergency crisis line. Plaintiff reported that she had not taken lithium, which she had previously been prescribed for bipolar symptoms, for three years. Dr. Herrera diagnosed her with bipolar disorder, not otherwise specified (“NOS”), and borderline personality disorder. He noted a global assessment of functioning (“GAF”) score of 38, indicating some impairment in reality testing or communication, or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. See generally American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (“DSM-IV”), at 34 (4th ed. rev. 2000). He prescribed lithium and instructed plaintiff to begin outpatient care.

         Plaintiff then treated at the Marc Center Outpatient Clinic for approximately a year from September 2009 through November 9, 2010. Her treating counselor was counselor Larry Fry, MA, LPC, [1] who assessed plaintiff at an initial evaluation with a GAF of 52, indicating moderate symptoms. Treatment notes from the Marc Center, signed by nurse practitioner (“NP”) Terry Hilger, indicate that plaintiff's mental condition fluctuated, and plaintiff often complained about labile moods. She was prescribed various psychiatric drugs including Risperdal (an antipsychotic), Abilify (an antipsychotic), Klonopin (a sedative used to treat anxiety), and Lamictal (an anticonvulsant often used for treatment of bipolar symptoms). Findings of mental status examinations (“MSEs”), however, were largely unremarkable, although plaintiff was often noted to have decompensated rather than remained stable between appointments.

         The record contains several opinions from consulting state agency psychologists. On August 10, 2009, Dr. Elliott Salk examined plaintiff and opined that she had no limitations other than a mild impairment in social interaction because plaintiff “talked a little quickly.” T. 421. On August 20, 2009, reviewing psychologist Dr. Rosalia Pereyra on August 20, 2009, opined that plaintiff had no severe mental impairments. Dr. Pereyra appeared to base her assessment entirely on Dr. Salk's consulting exam.

         On January 13, 2010, Dr. Celia Drake examined plaintiff and opined that she was able to follow and recall simple instructions in a work setting, and that she may have problems responding appropriately in a work setting “although she should be able to perform in some work settings where she [had] less social interaction.” T. 472. A second reviewing psychologist, Dr. Jonathan Zuess, completed an assessment on February 8, 2010, in which he opined that plaintiff was markedly limited in her ability to accept instructions and respond appropriately to criticism from supervisors, and that she was moderately limited in several areas involving understanding and memory, sustained concentration and persistence, and social interaction. As noted above, the Appeals Council order dated March 29, 2012 instructed the ALJ to give further consideration to the opinions of Drs. Drake and Zuess on remand.

         In a November 9, 2010 functional capacity report, plaintiff's counselor Mr. Fry opined that plaintiff had slight difficulty understanding and remembering simple instructions; moderate difficulty carrying out simple instructions and interacting appropriately with the public; marked difficulty understanding and remembering detailed instructions, making judgments on simple work-related decisions, interacting appropriately with co-workers, and responding appropriately to changes in a routine work setting; and extreme difficulty interacting appropriately with supervisors and responding appropriately to work pressures in a usual work setting. He commented that plaintiff's “severe and rapid mood swings disallow employment due to her constant conflicts with supervisors, co-workers, and the public.” T. 554.

         After moving from Arizona to the Buffalo, New York area in May 2011, plaintiff eventually began psychiatric treatment at Horizon Corporations on June 29, 2012. In an initial psychiatric assessment, plaintiff was assessed with labile mood, fair concentration, insight, and judgment, and an otherwise normal MSE. She reported NP Katie Millard that she had last engaged in self-cutting behavior in March 2012. Plaintiff was prescribed Lamictal, Celexa (a selective serotonin reuptake inhibitor [“SSRI”]), Abilify, and Klonopin.

         IV. The ...

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