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Hernandez v. Colvin

United States District Court, W.D. New York

May 22, 2017

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

          For the Plaintiff: Elizabeth A. Haungs Kenneth R. Hiller Law Offices of Kenneth Hiller.

          For the Defendant: Emily M. Fishman Social Security Administration Office of General Counsel, Kathryn L. Smith, A.U.S.A. Office of the United States Attorney.


          CHARLES J. SIRAGUSA United States District Judge.


         This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security (“Commissioner” or “Defendant”), which denied the application of Anthony Hernandez (“Plaintiff”) for Supplemental Security Income Benefits (“SSI”). Now before the Court is Plaintiff's motion (Docket No. [#10]) for judgment on the pleadings and Defendant's cross-motion [#13] for judgment on the pleadings. Plaintiff's application is denied and Defendant's application is granted.


         The reader is presumed to be familiar with the parties' submissions, which contain detailed recitations of the pertinent facts. The Court has reviewed the administrative record [#8] and will offer only a brief summary of those facts.

         On July 16, 2011, Plaintiff was taken to the emergency room (“ER”) at the University of Rochester Medical Center by New York State Troopers who had arrested him. (408-409). Plaintiff told ER staff that the officers had pulled him over and arrested him for DWI after he failed a breathalyzer test, that the officers handcuffed him, and that as the officers were attempting to place him in a patrol car, he ran away, after which the officers caught him and slammed him to the ground. Plaintiff characterized the officers' actions as an “assault.” (409). Plaintiff claimed that he had lost consciousness briefly, though the officers denied that. (409). ER staff treated Plaintiff for skin abrasions on his right knee, face and right temple. Id.

         In 2012, Plaintiff worked very briefly at an unspecified job, and earned $189. (164). Plaintiff has not worked since that time.

         Between May 2013 and June 2013, Plaintiff served a criminal sentence in the Monroe County Jail. This incarceration was apparently unrelated to the aforementioned arrest in 2011, as Plaintiff indicated that it was for “drug possession, ” not DWI. (296, 298). In any event, on May 9, 2013, jail security staff reportedly told jail medical staff that Plaintiff was “acting strangely.” (271). A nurse visited Plaintiff, who seemed upset that he had not received mental health treatment, and instructed him that he could request medical attention using the “sick call” forms. (271). The following day, May 10, 2013, Plaintiff reportedly complained to jail medical staff that he was not receiving mental health medications, and requested sleeping pills. (270-271). The examining nurse noted that Plaintiff's mood was stable, with no evidence of thought disorder. The nurse further stated:

[Inmate] rambled extensively giving conflicting and untrue information with no clear goal for sharing information. [Inmate] points out blame on his family, the community and the police and deputies for the problems he's had in his life. Does not engage in any feedback or redirection except when confronted with sharing false information then admits to lying.


         On May 24, 2013, Plaintiff told a jail nurse that he was having nightmares. The nurse reported that Plaintiff had a “flat affect and staring eye contact.” (270). Plaintiff further stated that he had been informed three days earlier that his cousin had been killed in the military in Iraq. However, a jail security officer informed the nurse that Plaintiff had told him that the cousin had been killed in 2009. (270). On May 27, 2013, Plaintiff told another jail nurse that he was having trouble sleeping, and that he “saw” the face of his cousin, who “died last summer in Iraq.” (270). The nurse noted that Plaintiff was “easily irritated” and had “intense staring eye contact.” (270). On May 28, 2013, a jail deputy asked medical staff whether Plaintiff had been evaluated for mental health issues, since he acted strangely and seemed to have “difficulty understanding and following rules.” (270). Medical staff transferred Plaintiff to the mental health unit for evaluation. (269-270).

         On May 29, 2013, jail psychiatrist Robert Stern, M.D. (“Stern”), examined Plaintiff and diagnosed “PTSD likely, THC dependence and [illegible] syndrome of worsening anxieties.” (280). Stern indicated that Plaintiff attributed his alleged PTSD symptoms to two events: 1) “an assault with a blade in his face as a teen, ” and 2) the death of “a close family member [in the] Middle East.” (280). Stern made the “THC dependence” diagnosis based on Plaintiff's statement that he smoked marijuana five times per week and “c[ould]n't deal with his anxiety without it.” (280). Stern apparently prescribed Paxil and Neurontin to address Plaintiff's anxiety and cravings for marijuana. (281). On June 21, 2013, Plaintiff reportedly indicated that he felt calm and was sleeping well. (269). On June 24, 2013, Plaintiff reportedly indicated that his “depression and anxiety [were] significantly improved.” (269).

         On August 5, 2013, shortly after being released from jail, Plaintiff received a mental health evaluation at Unity Health System (“Unity”) in Rochester. (295-298). Carolyn Gavett, MS MHC (“Gavett”) performed the evaluation. Gavett reported that Plaintiff's mental status exam was unremarkable, except that his “thought process” indicated “hopelessness.” (297). When asked if he had suffered any trauma or abuse, Plaintiff indicated that he had been “assaulted by a police officer, ” apparently referring to the 2011 arrest, and that he had been “stabbed” in 2011. Gavett wrote: “He does not report any other trauma or abuse except for when he was stabbed and reportedly assaulted by a police officer.” (296, 298). Plaintiff indicated that he used marijuana to “self medicate, ” but had not used it since going to jail. (295). Plaintiff complained of anxiety, depression and nightmares, and said that these symptoms had worsened when he went to jail. (298). Plaintiff related his limited work history, and stated that he did not like working for other people or having people tell him what to do. (296).

         On August 13, 2013, Plaintiff submitted an application for SSI benefits. Plaintiff maintained that he became unable to work on May 1, 2013, while he was in jail, though the significance of that date is unclear. (171). Plaintiff claimed to be disabled due to “anxiety, ” “PTSD” and “depression.” (171). Plaintiff's application painted a bleak picture of his overall condition. In particular, Plaintiff indicated that he needed help bathing himself (180), did not groom his hair or beard (179-180), and had very limited activities of daily living. (181-183). For example, Plaintiff stated that he could not perform household chores because of “fatigue, fever.” (181, 183). Plaintiff further stated that he went “nowhere, pretty much, ” and only ventured outside once every two or three days, due to “anxiety, depression.” (181, 183). Plaintiff further stated that he was unable to handle money or pay bills, though he did not explain why. (182). Plaintiff stated that his hobbies and activities were reading, watching television and attending church “sometimes.” (182-183). Plaintiff indicated that he had difficulty lifting, standing, walking, climbing stairs, kneeling, squatting, reaching, using his hands, and talking. (183-184).[1] Curiously, Plaintiff also stated that he needed a cane to ambulate. (185). Plaintiff elaborated that the cane was prescribed by his doctor, and that he needed the cane “always.” (185). Plaintiff stated that he could walk for only “maybe 5 min.” (185). Plaintiff further stated that he had difficulty paying attention due to “listening problems, lack of interest, ” was unable to follow either spoken instructions or written instructions, and had difficulty getting along with persons in positions of authority due to “difficulty understanding, paperwork.” (185).

         On August 14, 2013, Plaintiff sought medical treatment for a wound to his left leg. (372). Plaintiff reported that on August 8, 2013, he had injured the leg when he fell off a “motor bike.” (372). Plaintiff was prescribed antibiotics. (372).

         On September 9, 2013, Christine Ransom, Ph.D. ("Ransom") conducted a consultative psychiatric evaluation in connection with Plaintiff's SSI application. (309-312). Plaintiff told Ransom that he had walked six miles to get to the appointment (309), though he had previously indicated that he could not walk for more than five minutes and needed a cane to ambulate. Plaintiff reportedly told Ransom that his medical history was limited to being treated for psoriasis, and that he had never been hospitalized. (310). Plaintiff also reportedly told Ransom that he had no history of drug abuse, omitting any reference to his daily marijuana usage. (310). Plaintiff further told Ransom that he had just spent three months in jail for DWI, even though he was actually jailed for drug possession. (310, 296, 298).

         Plaintiff told Ransom that he "had never been able to hold a job due to emotional problems." (309). In that regard, Plaintiff stated that he was having "nightmares, flashbacks, intrusive thoughts, anger, fear and depression, " relating to incident that had occurred "about two years [earlier, when] he was attacked by two men wearing masks who repeatedly struck him in the face with a pipe causing fractures to his face. They left him bleeding and and for dead. He crawled to a neighbor's house to seek help." (309). Plaintiff further told Ransom that he was experiencing crying spells, irritability, low energy, difficulty concentrating, loss of motivation and discomfort around people. (309). Plaintiff also claimed to experience "panic attacks" several times per day, beginning after the aforementioned alleged assault. (310).

         Plaintiff told Ransom, however, that he could perform activities of daily living such as dressing and bathing himself, grooming himself, cooking and preparing food, performing household chores like cleaning and laundry, shopping and managing his own money. (311). Plaintiff also stated that he lived with his mother, but did not socialize with family or friends. (311).

         Upon examination, Ransom noted that Plaintiff seemed withdrawn, non-spontaneous, lethargic, depressed, irritable and anxious. (310). Ransom concluded that Plaintiff's attention, concentration and immediate memory were "moderately impaired, " though his cognitive functioning was average and his insight and judgment were good. (311). Ransom's diagnosis was PTSD, "currently moderate to marked, " panic disorder "currently moderate to marked, " and major depressive disorder, "currently moderate." (312). Ransom noted that Plaintiff was not currently taking any mental health medication (309), but opined that his prognosis would be "fair to good with continued treatment." (312). Regarding Plaintiff's ability to work, Ransom stated, in pertinent part: "This individual will have moderate difficulty following and understanding simple directions and instructions, performing simple tasks independently, maintaining attention and concentration for simple tasks, maintaining a simple regular schedule and learning simple new tasks." (311).

         On September 13, 2013, state agency psychological consultant T. Harding, Ph.D. (“Harding”), completed a report in connection with Plaintiff's application for SSI benefits. (69-78). Harding indicated that he had reviewed, inter alia, Ransom's report, as well as Plaintiff's records from Unity and evidence concerning Plaintiff's activities of daily living. (70-71). Harding indicated that he gave “great weight” to Ransom's report, noting that Ransom's opinion was “consistent with [her] exam.” (74). Harding concluded that Plaintiff had moderate limitations in areas including the ability to understand and remember simple instructions, the ability to maintain attention and concentration for extended periods and the ability to perform activities within a schedule and maintain regular attendance. (74). Nevertheless, Harding found that Plaintiff retained the ability to work: “The claimant retains the ability to perform simple work with limited stress and limited contact with others.” (76). In arriving at this determination, Harding indicated that he found Plaintiff's complaints only “partially credible, ” based upon Plaintiff's activities of daily living. (73). Specifically, Harding observed that Plaintiff had only “mild” limitations in his activities of daily living. (72-73). Based upon Harding's opinion, the Commissioner denied Plaintiff's application for benefits. (85).

         On December 22, 2013, Gavett wrote a report discharging Plaintiff from mental health treatment at Unity. (240-243). Gavett indicated that Plaintiff was being discharged because he had attended three therapy sessions, but then stopped attending, and had not responded to her phone call or to multiple letters:

Anthony attended three individual therapy appointments and processed his current stressors. Explored how he has started to help himself and Anthony has been making doctor's appointments, applied for DHS and also applied for SSI. Plaintiff missed appointment writer sent letter of concern for him to call and schedule and called patient. Anthony did not respond to letter and another letter sent with a date and time for patient to make and keep an appointment or the case would be closed. He did not respond to this letter and his case was closed.

(240). Gavett reported that prior to April 2013, Plaintiff had been smoking “2-10 [marijuana] blunts a day, ” but did not believe that he had a problem with substance abuse. (242).

         In July, 2014, Plaintiff sought mental health treatment from a different provider, Genesee Mental Health. (Ex. 7F, 336). Plaintiff claimed to be seeking treatment because he felt worried and scared. (341). On July 30, 2014, Erica Hahn, LMSW (“Hahn”) completed a “psychosocial assessment/admission note.” (344-345). Plaintiff reportedly told Hahn that he had stopped attending mental health appointments at Unity because he had been attempting to find employment. (342). Plaintiff claimed to have suffered a ...

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