United States District Court, W.D. New York
the Plaintiff: Elizabeth A. Haungs Kenneth R. Hiller Law
Offices of Kenneth Hiller.
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.
DECISION AND ORDER
CHARLES J. SIRAGUSA United States District Judge.
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
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
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.
2012, Plaintiff worked very briefly at an unspecified job,
and earned $189. (164). Plaintiff has not worked since that
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
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.
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
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).
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). 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).
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
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,
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).
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.
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).
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).
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
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).
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