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Vasquez v. Berryhill

United States District Court, S.D. New York

May 1, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION & ORDER

          ANDREW J. PECK, United States Magistrate Judge

         Plaintiff Sandra Vasquez brings this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security denying her application for Supplemental Security Income and Disability Insurance Benefits. (Dkt. No. 1: Compl.) The parties have consented to decision of the case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 18.) Presently before the Court are the parties' cross-motions for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Dkt. No. 12: Vasquez Notice of Mot.; Dkt. No. 14: Comm'r Notice of Mot.)

         For the reasons set forth below, Vasquez's motion for judgment on the pleadings (Dkt. No. 12) is DENIED, and the Commissioner's motion (Dkt. No. 14) is GRANTED.


         Procedural Background

         On September 30, 2013, Vasquez filed for Disability Insurance Benefits ("DIB") alleging an inability to work due to disability since March 1, 2012, and Supplemental Security Income ("SSI") alleging disability since January 1, 2013. (Dkt. No. 11: Admin. Record filed by Comm'r ("R.") 203-16.) On December 5, 2013, the Social Security Administration found Vasquez not disabled. (R. 114-30.) On January 9, 2014, Vasquez requested an administrative hearing. (R. 132-34.) Administrative Law Judge ("ALJ") Sheila Walters conducted a hearing on June 16, 2015 (R. 42-76), at which Vasquez appeared with attorney David Levine (R. 42-44, 201). On August 13, 2015, ALJ Walters issued a written decision finding Vasquez not disabled. (R. 9-24.) ALJ Walters' decision became the Commissioner's final decision when the Appeals Council denied Vasquez's request for review on July 22, 2016. (R. 1-5.)

         Non-Medical Evidence & Testimony

         Vasquez was born on May 24, 1975, and was thirty-six years old at the time of her alleged disability onset on March 1, 2012. (R. 203.) Vasquez's allegedly disabling conditions include chronic depression, bipolar disorder, anxiety, migraines, obesity, asthma, panic attacks and schizophrenia. (R. 237, 267, 309.) At the time of her hearing before ALJ Walters, Vasquez lived in the Bronx with her three children, ages nineteen, twenty, and twenty-three. (R. 49.) Vasquez completed eleventh grade, but did not obtain a GED, attend college or receive any vocational training. (R. 50.) Vasquez was self employed for several years as a babysitter in her own home, and as a home attendant at Loretto Utica Adult Residence, but stopped working due to her depression. (R. 53-55, 69, 238, 254, 267-68, 360.)

         Vasquez relied on her children or friends to assist with her personal grooming, laundry, grocery shopping, and household chores, as well as to transport her to various appointments. (R. 49-50, 52-53, 246-47, 284-86, 311.) Vasquez claimed she had no energy to dress or bathe due to her depression, although she was able to prepare simple meals three or more times a week. (R. 244-45, 283-84, 311.) When Vasquez had no energy to cook, her children would prepare her meals. (R. 52, 284-85.) Vasquez testified that she had no hobbies or activities, belonged to no organizations such as a church or club, watched no television and spent no time with other people, although she denied having problems getting along with family members and friends. (R.53, 60-61, 248, 313-14.)[1]

         Vasquez went outside at least once a month and was able to use public transportation. (R. 246, 285, 312.) Vasquez testified that she could not stand crowds or strangers, and handled stress by taking pills every day and staying in her bedroom alone with the door closed (R. 61, 67) "sleeping all day" (R. 283). Memory problems caused Vasquez to "forg[e]t many things" (R. 60, 251, 290), and her poor concentration and inability to read made it difficult to handle her finances (R. 247, 250-51, 286, 289), although her ability to do so improved by early 2014 (see R. 312).[2] Vasquez testified that her arthritis in both knees limited her to thirty minutes of walking at a time, two or three times during an eight-hour work day, and twenty minutes of sitting at a time before she would have to lie down. (R. 59-60, 288.)[3] Vasquez could lift one gallon of milk, but not two, and denied any problems using her hands. (R. 60, 249, 288.) Vasquez further testified that she was treated for stress incontinence (R. 66-67) and migraine headaches (R. 56), but did not elaborate on the frequency or severity of either condition. Vasquez denied vision or hearing problems or substance abuse issues. (R. 63.)

         Vasquez testified that she received mental health treatment (R. 61) and that she had daily visual and auditory hallucinations. (R. 64.) Vasquez stated that "every day" she would "cry for no apparent reason" and see and have conversations with a "shadow" named "Lolita" that told Vasquez "negative things." (R. 64, 67.) Before the onset of her psychiatric disorders, Vasquez would go out and socialize with friends, but no longer did so. (R. 65.) Vasquez had "daily" incapacitating anxiety attacks triggered by "traumatic memories" that lasted fifteen minutes in January 2013 (R. 251-52), and between one to two hours in October 2013 (R. 292).

         Medical Evidence Before the ALJ

         Evidence Of Psychological Limitations

         FEGS [4]

         A July 24, 2012 FEGS biopsychosocial summary completed by FEGS social worker Nancy Stremmel stated that Vasquez denied "suicidal/homicidal ideation, plan or intent and . . . denie[d] auditory command hallucinations." (R. 364, 367.) Vasquez reported that in the weeks prior she had felt depressed or hopeless and had trouble sleeping for several days, had little interest or pleasure in doing things, and lacked concentration and felt tired nearly every day. (R. 364.) Vasquez was sometimes able to travel independently and took the bus to her FEGS appointment, and could care for herself and her home, watch television, shop for groceries, cook, read and socialize. (R. 365.) Vasquez's psychiatric evaluation noted her abnormal mood, affect and dysphoria. (R. 371.)[5]

         Vasquez returned to FEGS on February 6, 2013 with complaints of depression and insomnia, and was diagnosed with "[d]epressive disorder, not elsewhere classified, " "[a]nxiety state, unspecified, " and migraines. (R. 372-74.) "Cognitive/Interpersonal/Adaptive" limitations, specifically "[c]oncentration problems, " were noted. (R. 374.) FEGS recommended further evaluation of Vasquez's "untreated depression and anxiety with moderate to severe vocational impairment." (R. 375.)

         On January 23, 2014, FEGS entitlement specialist Norma Tejada completed a third party function report on Vasquez's behalf. (R. 309.) The report described Vasquez's sleep, memory and concentration issues, hallucinations, and inability to handle stress. (R. 310, 314-15.) The report also stated that Vasquez had no issues with personal care, could prepare her own meals, use public transportation, go shopping and manage her finances. (R. 310-12.) Vasquez also could follow written and spoken instructions, had no issues with authorities, and could adapt to change. (R. 314-15.)

         Notes from an April 30, 2014 FEGS visit with physician Deepak Sawlani state that Vasquez had no sensory, communication, cognitive, or interpersonal limitations, and no limitations "[m]aintaining energy level, sustaining attendance, achieving adequate work pace and productivity." (R. 456-57.) However, Vasquez's history of anxiety caused emotional (tolerating stress, adapting to change) and environmental (tolerating exposure to heights, operating a vehicle) limitations. (R. 457.)

         A May 7, 2014 biopsychosocial summary completed by FEGS social worker Gladys Peri stated that Vasquez reported a history of bipolar disorder, panic attacks, anxiety and schizophrenia. (R. 436.) Vasquez denied suicidal or homicidal ideation, but, as recently as two days prior, experienced auditory hallucinations of three voices fighting and telling her what to do. (R. 436-37.) Vasquez was alert, oriented, responsive and well-groomed during her FEGS interview. (R. 441.)

         On May 9, 2014, Dr. Sawlani diagnosed Vasquez with "[s]chizophrenic, " "[a]nxiety, dissociative and somatoform disorders." (R. 460-61.) In Vasquez's functional capacity determination, Dr. Sawlani wrote that Vasquez was potentially unable to work due to her schizophrenia and anxiety symptoms that were expected to last at least a year. (R. 461-62.)

         Clay Avenue Health Center [6]

         On October 24, 2012, Vasquez had an initial psychiatric evaluation with nurse practitioner Esther Aguirre of Clay Avenue Health Center for complaints of depression and anxiety. (R. 469-72.) Vasquez reported that "[t]he first episode occurred in 2005" and that her symptoms had worsened. (R. 469.) Vasquez reported that it was "very difficult" to function; she presented with "anxious/fearful thoughts, compulsive thoughts, decreased need for sleep, depressed mood, difficulty concentrating, difficulty falling asleep, difficulty staying asleep, diminished interest or pleasure, excessive worry, feelings of guilt, hallucinations (auditory), paranoia, racing thoughts and restlessness." (Id.) Risk factors included Vasquez's "history of depression, " "social isolation" and past abuse. (Id.) Vasquez reported a "severe [history] of sexual abuse by her grandfather for several years at age 6/7" and that she could no longer handle her worsening behavior. (Id.) Although she attempted to commit suicide three years prior and "at times" endorsed suicidal (but not homicidal) ideation, Vasquez denied any current "plan or intent." (Id.)

         Nurse Aguirre found that Vasquez presented with appropriate appearance; clear speech; unremarkable behavior and thought content; intact memory; cooperative but discouraged attitude; anxious and depressed mood; constricted affect; fair reasoning, impulse control, judgment and insight; and was oriented to person, place, time and situation. (R. 379, 470.)[7] Nurse Aguirre further found that Vasquez "has auditory hallucinations" and her "[t]hought content reveals paranoia." (R. 379.) Nurse Aguirre diagnosed Vasquez with "[m]ood [d]isorder, [o]ther, " rule out "[b]ipolar depression, " generalized anxiety and post-traumatic stress disorder ("PTSD"), with a GAF score of 50. (R. 471.) Vasquez had "[s]evere [p]roblems related to: education, finances, occupation, primary support group, [and] social environment." (Id.) Nurse Aguirre concluded that Vasquez "needs ASAP therapy." (Id.)

         From October 31, 2012 through December 17, 2012, Vasquez presented with anxiety and depression, reporting moderate improvement on medication; Vasquez exhibited no signs of psychosis, mania or overt delusions, but did report auditory hallucinations and paranoid thought content. (R. 473-74, 476-77, 479-80, 482-83.) Nurse Aguirre's other findings during these visits were similar to those made on October 24, 2012, including unremarkable behavior; fair reasoning, impulse control, judgment and insight; and orientation to person, place, time and situation. (R. 473-74, 476-77, 479-80, 482-83.) Nurse Aguirre diagnosed Vasquez with "[m]ood [d]isorder, [o]ther, " generalized anxiety and PTSD, and reiterated her GAF score of "50 on 10/24/2012." (R. 474, 477, 480, 483.)

         On December 18, 2012, Vasquez participated in an individual therapy session with Yessenia Palomino, LMSW. (R. 486-89.) Vasquez presented with "depressed mood, difficulty concentrating, difficulty falling asleep, diminished interest or pleasure, fatigue, feelings of guilt, loss of appetite, restlessness and thoughts of death or suicide." (R. 486.) Vasquez stated that there had been "no improvement" in her depression or anxiety, functioning was "extremely difficult, " and she had "severe" auditory hallucinations daily. (Id.) Vasquez underwent a second individual therapy session with Palomino on January 18, 2013, who wrote that Vasquez's "thought process appears to be concrete attributing cure from depression deriving from external factors alone (medication, therapy, treatment, etc)." (R. 494.) Vasquez was oriented to person, place, time and situation, had poor insight and reasoning, and fair impulse control and judgment. (R. 494-95.)

         Vasquez sought further treatment with Nurse Aguirre on January 7 and February 20, 2013. (R. 490, 500.) At both visits, Vasquez was "a bit more stable, " not sleeping well, continued to experience auditory hallucinations (but not overt delusions), and denied suicidal/homicidal plan or intent. (R. 490, 500.) Vasquez reported these same symptoms on March 19 and April 16, 2013, and had a GAF score of 51. (R. 504-06, 508-10.)

         Nurse Aguirre completed two New York City Human Resources Administration wellness forms on April 16 and May 14, 2013, on which she indicated that Vasquez's functional limitations rendered her unable to work for at least twelve months. (R. 413-16.)

         Vasquez attended a third individual therapy session with Palomino on May 2, 2013 at which she presented with "depressive state, " "flat affect" and dissociative feelings, denied suicidal or homicidal intent, and reported visual and auditory hallucinations. (R. 512.) Vasquez was oriented to person, place, time and situation, her reasoning and impulse control were fair, but her judgment and insight were poor. (Id.)

         Vasquez saw Nurse Aguirre another fifteen times from May 14, 2013 through March 19, 2014. (R. 519-94.) The treatment notes for these visits are essentially the same: Vasquez presented with poor sleep patterns, anxiety, depression and auditory hallucinations, but had no suicidal or homicidal intent, no overt delusions, no signs of psychosis or mania, appropriate appearance, unremarkable behavior, fair reasoning, impulse control, judgment, and insight, was oriented to person, place, time and situation, with average intellect, intact memory and a GAF that fluctuated between 56 and 59. (R. 519-20, 523-24, 526-28, 534-36, 539-41, 544-47, 549-52, 554-57, 559-62, 564-67, 569-72, 574-77, 579-82, 584-87, 589-92.)

         Nurse Aguirre wrote a "To Whom It May Concern" letter on September 17, 2013 stating that Vasquez was treated for schizoaffective disorder, anxiety disorder with panic attacks and PTSD. (R. 417.) She wrote that despite compliance with medication, Vasquez still experienced a number of symptoms including panic attacks, paranoia, hopelessness, poor concentration, sleep disturbance and auditory hallucinations. (Id.) Nurse Aguirre opined that these conditions, coupled with the side effects of her medication, so impacted Vasquez's "mood, thinking, [and] memory" that she could not maintain employment. (Id.)

         Nurse Aguirre wrote a second letter on December 11, 2013 that reiterated Vasquez's treatment history. (R. 429.) Nurse Aguirre stated that Vasquez had been compliant with treatment, but "continues endorsing depression and anxiety and mood swings and [s]leep disturbances." (Id.) Nurse Aguirre opined that these conditions, coupled with the side effects of her medication, so impacted Vasquez's "mood, memory, concentration, and sleep pattern" that she could not maintain employment. (Id.)

         On May 21, 2014, Vasquez obtained a psychiatric evaluation from nurse practitioner Brianna Morrison. (R. 599.) Vasquez reported that her depression had improved since her initial visit with Nurse Aguirre on October 23, 2012 and denied suicidal or homicidal intent. (R. 599, 603.) Vasquez presented with appropriate appearance and affect, unremarkable behavior, psychomotor behaviors and thought content, clear speech, intact memory, depressed mood, clear consciousness sensorium, average intellect, cooperative attitude, gained attention, logical thought processes, and fair reasoning, impulse control, judgment and insight. (R. 603.) Moreover, Vasquez was oriented to person, place, time and situation, denied auditory or visual hallucinations, and had a GAF score of 57. (Id.)

         Vasquez's seven remaining treatment notes from Nurse Morrison, dated July 31, 2014 through March 24, 2015, include little detail other than a manic depressive disorder diagnosis. (See R. 609-12, 618-19, 629-39.) There are no reports of auditory or visual hallucinations in any of these treatment notes. (Id.) Nurse Morrison also included Vasquez's GAF scores, which ranged from 59 to 62, increasing over time. (R. 610, 612, 619, 630, 633, 636, 639.)

         Industrial Medicine Associates, P.C.

         On January 22, 2013, Vasquez underwent a consultative psychiatric evaluation by Melissa Antiaris, Psy.D., of Industrial Medicine Associates, P.C. (R. 350-53.) Vasquez stated that "her sleep is normal now with medications and her appetite is also normal, " but reported a history of "[d]epressive symptoms, " "[a]nxiety related symptoms and panic attacks, " and hallucinations. (R. 350.) Dr. Antiaris wrote:

The claimant reports that she has been depressed since she was a child. It has been on and off over the years, but she currently feels depressed daily. She [c]ites dysphoric moods and crying spells. She denies any current suicidal or homicidal ideation. . . . The claimant reports that she is very nervous and she has shaky hands and a shaky body. When she feels very shaky she must sit down because she feels unable to walk. . . . She is not sure if it is a panic attack. . . . The claimant reports that for many years she experiences auditory hallucinations in the form of three voices. Lolita is command at times. She has told her before to throw acid on someone, but the claimant was able to ignore her. Carman is calm and Maria is funny. She reports that sometimes they can be persecutory in nature. She was unable to explain further.

         (R. 350-51.) No manic or cognitive symptoms were noted. (Id.)

         During her mental status examination, Vasquez appeared "well groomed, " "dressed appropriately, " was "cooperative and related adequately, " and made "appropriate" eye contact. (R. 351.) Her "[s]peech was somewhat mumbled at times, but clear other times" and "[e]xpressive and receptive language both appeared adequate." (Id.) Dr. Antiaris noted that Vasquez appeared "[c]oherent and goal directed with no evidence of hallucinations, delusions, or paranoia" with a "[e]uthymic" mood, clear sensorium, and an affect "[o]f full range and appropriate in speech and thought content." (Id.)

         Vasquez's attention, concentration and memory were "[m]ildly impaired due to limited intellectual functioning" that prevented her from performing "simple calculations" or "serial 3s." (R. 352.) Cognitive functioning was "in the borderline range" although Vasquez's "[g]eneral fund of information [was] appropriate to experience." (Id.) Her insight and judgment were poor. (Id.) Vasquez was "able to dress, bathe, and groom herself, as well as cook, clean, complete laundry, . . . shop independently . . .[, ] manage her own funds and take public transportation." (Id.) Vasquez reported that she was "not being social at this time, " has no hobbies or interests, and spent her day maintaining her home and sometimes going outside for a walk. (Id.)

         Based on the foregoing, Dr. Antiaris concluded:

The claimant can follow and understand simple directions and instructions. She can perform simple tasks independently. She is able to maintain attention and concentration as well as a regular schedule. She can learn new tasks and she can perform complex tasks with supervision. She can make appropriate decisions. She relates adequately with others. She does not appropriately deal with stress. Difficulties are caused by psychotic symptoms.
The results of the examination appear to be consistent with psychiatric problems, but in itself does not appear to be significant enough to interfere with the claimant's ability to function on a daily basis.

(Id.) Dr. Antiaris diagnosed Vasquez with schizoaffective disorder and asthma, and recommended that she "continue with her current psychological and psychiatric treatment as provided." (R. 353.)

         On November 8, 2013, Vasquez underwent a second consultative psychiatric evaluation by Dr. Antiaris. (R. 422-26.) Vasquez reported difficulty falling and staying asleep and loss of appetite. (R. 422.) Vasquez felt depressed "every day" and described "dysphoric moods, crying spells, hopelessness, loss of usual interests, . . . irritability[, ] . . . fatigue, loss of energy, worthlessness, diminished self esteem, and social withdrawal, " but denied suicidal or homicidal ideation. (R. 422-23.) Vasquez experienced auditory and visual hallucinations that included seeing a woman named Lolita with whom she had regular conversations. (R. 423.)

         Dr. Antiaris observed that Vasquez was well groomed, dressed appropriately, made appropriate eye contact, had fluent and clear speech, and her thought process was "[c]oherent and goal directed with no evidence of hallucinations, delusions, or paranoia in the evaluation setting." (R. 423-24.) Vasquez's limited intellectual functioning impaired her attention and concentration, her cognitive functioning was "in the borderline range, " and her insight and judgment were poor. (R. 424.) Vasquez could "dress, bathe, and groom herself, " "manage her funds and take public transportation . . . ." (Id.)

         Dr. Antiaris opined that Vasquez was not limited in her "ability to follow and understand simple directions and instructions or perform simple tasks independently." (R. 424-25.) However, Vasquez was "moderately limited in her ability to maintain attention and concentration and a regular schedule, " "learn new tasks and perform complex tasks independently, " or "make appropriate decisions and relate adequately with others." (R. 425.) Vasquez also was markedly limited "in her ability to appropriately deal with stress." (Id.) These difficulties, Dr. Antiaris wrote, were caused by Vasquez's "psychotic symptoms" that "may significantly interfere with the claimant's ability to function on a daily basis." (Id.) Dr. Antiaris diagnosed Vasquez with schizoaffective disorder, migraines, thyroid problems and asthma; her overall prognosis was fair. (Id.)

         Other Consultative Opinions

         On March 13, 2013, V. Reddy, Ph.D., submitted a consultative psychiatric review which opined that Vasquez had mild restrictions in activities of daily living and social functioning, and moderate difficulties in maintaining concentration, persistence or pace. (R. 80.) Specifically, Dr. Reddy found that Vasquez was moderately limited in her ability to maintain attention and concentration for extended periods and respond appropriately to changes in a work setting, but was not significantly limited in the remaining categories of understanding and memory, sustained concentration and persistence, social interaction or adaptation limitations. (R. 81-83.) Dr. Reddy further found that Vasquez was "able to do self care, cook, clean, launder, shop, manage money, [and] take public transportation." (R. 83.) Vasquez reported daily depression, nervousness, and auditory hallucinations. (Id.) Dr. Reddy noted Vasquez's "mildly limited attention/concentration/memory, " "borderline" cognitive function, and poor "insight/judgment." (Id.) Dr. Reddy, however, found no evidence of auditory hallucinations, and noted Vasquez's full range of affect and euthymic mood. (Id.) Dr. Reddy opined that Vasquez was not disabled and could perform unskilled work. (R. 84.)

         On December 5, 2013, T. Harding, Ph.D., submitted a consultative medically determinable impairments form opining that Vasquez had mild restrictions in activities of daily living, and moderate difficulties in social functioning and maintaining concentration, persistence or pace. (R. 101.) In particular, Dr. Harding found that Vasquez was moderately limited in her ability to understand, remember, and carry out detailed instructions, to maintain attention and concentration for extended periods, to interact appropriately with the public, to respond appropriately to changes in the work setting, and to set realistic goals and make plans independently. (R. 104-05.) Vasquez was not significantly limited in the remaining categories of understanding and memory, sustained concentration and persistence, social interaction or adaptation limitations. (Id.) Vasquez was well dressed, and exhibited normal behavior and no thought disorder. (R. 105.) Vasquez presented with a flat affect, dysthymic mood, poor insight and judgment. (Id.) Dr. Harding opined that Vasquez was not disabled and could perform unskilled work. (R. 105-07.)

         Evidence Of Physical Limitations


         On July 24, 2012, Vasquez reported a thyroid condition, unspecified heart condition, asthma and a history of migraines that sometimes reached a ten out of ten on the pain scale. (R. 370-71.) Physician Anthony Greenridge wrote that Vasquez was limited to walking, climbing and standing one to three hours at a time. (R. 371.) Vasquez was further limited to lifting, carrying and pushing twenty pounds, and pulling ten pounds, one to ten times per hour, and restricted to a low stress environment. (R. 372.) Dr. Greenridge wrote that Vasquez had joint swelling and mild swelling at the right foot with no tenderness. (R. 371.)

         On February 6, 2013, Vasquez reported migraines, asthma, an unspecified heart condition, and a thyroid condition. (R. 375.)

         On April 30, 2014, FEGS physician Deepak Sawlani wrote that Vasquez had two out of ten moderate knee pain that increased with activity. (R. 455.) No swelling was present in either knee, and Vasquez's musculoskeletal exam was normal aside from joint pain and range of motion. (R. 450, 454.) Vasquez had no lifting, pushing, pulling, sitting, reaching, kneeling, squatting, postural or manipulative limitations, but was limited to one to three hours of standing and walking. (R. 455-56.) Dr. Sawlani recommended that ...

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