United States District Court, W.D. New York
DECISION AND ORDER
ELIZABETH A. WOLFORD, UNITED STATES DISTRICT JUDGE.
Kimberly Jean Scheurer ("Plaintiff) brings this action
pursuant to 42 U.S.C. § 405(g) and seeks review of the
final decision of Nancy A. Berryhill, Acting Commissioner of
Social Security ("the Commissioner"), denying
Plaintiffs application for Disability Insurance Benefits
("DIB"'). (Dkt. 1). Presently before the Court
are the parties' opposing motions for judgment on the
pleadings pursuant to Fed.R.Civ.P. 12(c). (Dkt. 9; Dkt. 17).
October 26, 2010, Plaintiff filed a Title II application for
a period of disability and disability insurance benefits.
(Administrative Transcript ("Tr.") 151, 332). In
her application, Plaintiff alleged that she had been disabled
since January 1, 2010, due to symptoms arising from bipolar
disorder. (Tr. 151, 332). Plaintiffs claim was initially
denied on February 10, 2011. (Tr. 169). Plaintiff filed a
timely request for a hearing before an Administrative Law
Judge ("ALJ") on March 14, 2011. (Tr. 176).
Plaintiff appeared and testified at a hearing in Rochester,
New York on March 5, 2012, as did Mary Beth Kopar, a
vocational expert ("VE"). (Tr. 41). ALJ Andrew
Henningfeld presided over the hearing. (Id.). On
April 6, 2012, ALJ Henningfeld issued a decision denying
Plaintiffs claim. (Tr. 144-59). Plaintiff requested that the
Appeals Counsel review ALJ Henningfeld's decision. (Tr.
165). The Appeals Counsel granted Plaintiffs request and
remanded the matter to ALJ Connor O' Brien on September
13, 2013. (Tr. 165-67).
appeared at a second hearing before ALJ O'Brien on
December 17, 2014, in Rochester, New York, as did VE Carol G.
McManus. (Tr. 104). ALJ O'Brien issued a decision denying
Plaintiffs claim on May 12, 2015. (Tr. 17-33). Plaintiff once
again sought review by the Appeals Council, which denied her
request on January 11, 2016. (Tr. 5). Plaintiff commenced
this action on March 7, 2016. (Dkt. 1).
The Non-Medical Evidence
First Hearing: March 5, 2012
March 5, 2012, Plaintiff, who was 44 years old, appeared
before ALJ Henningfeld. (Tr. 41, 50). She had completed two
years of college, was 5'4" tall, and weighed 155
pounds. (Id.). Plaintiffs last job was with The
Democrat and Chronicle, a newspaper located in Rochester, New
York and owned by Gannett Newspapers. (Id.).
Plaintiff held a sales and service position in classified
advertising, where she took calls in a "call center
environment." (Id.). The job ended in July 2009
after a "massive layoff of 1, 000 employees. (Tr. 51).
Plaintiff was unable to find work since the layoff,
explaining that she had not "been able to find anything
that seemed to fit, and then [she] became very ill."
(Id.). Plaintiff also stated that, had the layoff
not occurred, she would have most likely been unable to
continue at the job due to her reaction to Paxil, a drug she
had taken for bipolar disorder. (Tr. 51-52).
testified that she suffered from severe depression when she
first filed for disability in January 2010, and that there
had been "eight months where [she] couldn't even get
out of bed." (Tr. 52-53). She had received unemployment
benefits until 2011. (Tr. 53). During that time, Plaintiff
continued to look for work "to the best of [her]
ability, " (id.); she used job search websites
and enlisted the help of her friends (Tr. 56). Plaintiff
stated that if she had received a job offer, she would have
pursued it despite her depression. (Tr. 56).
eight months, the only things Plaintiff could do, aside from
lay in bed, were use the bathroom and get herself water. (Tr.
54). She tried to care for her children, but "did a
pretty bad job of it" and relied on help from her
husband, children, and mother-in-law. (Id.). In
October 2010, Plaintiff started attending bipolar support
groups. (Tr. 53).
experiencing a depressive period, Plaintiff went through a
manic period in the fall of 2009. (Tr. 54-55). During this
time, she tried to start a business for spiritual
consultations and felt "invincible, " but did not
realize she was sick. (Id.). She rented office
space, used money from her 401(k) to buy a car, and would
hang out for drinks with friends. (Tr. 54-55, 80, 89).
Plaintiff used funds from her unemployment compensation to
pay for the rent in her office space. (Tr. 92-93).
testified that her medication for her illness was "still
a process." (Tr. 58). In 2007, she was incorrectly
diagnosed with seasonal affective disorder, for which she was
prescribed anti-depressants. (Id.). The
anti-depressants made her become psychotic. (Id.).
Three years later, she was diagnosed with bipolar disorder,
for which she was prescribed a mood stabilizer, and later,
Paxil-an anti-depressant. (Id.). Paxil helped her
out of her initial depression, but it kept her mood cycling.
(Id.). In December 2011, she was taken off Paxil and
given a different mood stabilizer. (Tr. 59). She was
currently taking Depakote, which was helpful, but she
believed the dosage was a little high. (Id.).
asked Plaintiff about a specific note from a doctor's
visit on January 12, 2012, where Plaintiff had reported doing
well and had refused an increase in Depakote. (Tr. 60).
Plaintiff was unsure of exactly what the note meant, but she
believed that the doctor was commenting on her dosage because
"that's really ... the only thing [Plaintiff] would
say anything positive about because . . . that particular
visit there was a lot of crisis that [she] had just come out
of." (Tr. 65). Plaintiff also stated that sometimes when
she believed she was doing well or she felt that the
medication was working, she was "completely wrong."
testified that her family had been experiencing conflict; in
particular, her husband was at times fearful of and angry
about her manic episodes, and they faced financial
difficulty. (Tr. 66). Plaintiff testified that her daughter
had slapped her because her daughter was "still very
angry about the time [Plaintiff] left" and did not
understand that it was Plaintiffs illness-specifically a
manic episode-that caused Plaintiff to leave her family. (Tr.
67-68). After her daughter slapped her, Plaintiff called the
police because she was stressed and wanted her husband to
stop yelling; she felt threatened. (Id.). After this
incident, she left to reside with a friend. (Tr. 70). She
came back home after she had a conflict with the friend, who
purportedly came home in an "alcoholic rage" and
became embroiled in a physical altercation with Plaintiff.
further questioned Plaintiff about the period in the fall of
2009 when she left the family home. (Tr. 69). Plaintiff would
go home to see her children and to shower, but she slept at
her office space. (Id.). She returned to the home in
December of 2009. (Tr. 70). Plaintiff believed her bipolar
disorder exacerbated her marital difficulties, and that
conflict in her family began to increase in the fall of 2009.
(Id.). Plaintiff viewed "the family problems
and illness as interchangeable." (Tr. 71).
could read but had difficulty concentrating, and she could
care for herself but also had trouble doing so on occasion.
(Tr. 72). Her only activity was participating in her
self-help group, and she usually could complete household
chores. (Tr. 73). Her husband did most of the cooking and,
aside from simple things such as making sandwiches, Plaintiff
would just reheat food he had made. (Tr. 75). Plaintiff could
drive, but she did not do so because she was uncomfortable
driving on her medication. (Tr. 76). However, Plaintiff did
drive to her support group and to run errands.
testified that she used marijuana socially before her
diagnosis, from the age of 20 until December of 2009, (Tr.
77), but she had not used marijuana or alcohol since December
of 2009 (Tr. 80).
attorney then questioned Plaintiff. (Tr. 82). Plaintiff
testified that she had left a job as a leasing agent at
Waverly Wood Apartments for a better position with higher pay
because she was manic. (Id.). Plaintiff had trouble
getting along with coworkers and supervisors due to her
symptoms, and any sort of stress made her symptoms worse.
(Tr. 83). Plaintiff tried to remove herself from stressful
situations and find a way to calm down. (Id.). She
also testified that sometimes, when she thought that her
symptoms were under control, others would tell her they were
not. (Tr. 84).
Plaintiffs eight-month period of depression, she testified
that she attempted to hurt or kill herself by jumping from a
moving car. (Tr. 87). Plaintiffs mother-in-law prevented her
from jumping by pulling the car over, and then she took
Plaintiff back home. (Id.). Plaintiff believed that
she should have been hospitalized, but no one understood what
was going on with her illness. (Id.)
was initially treated by Dr. Wendy Rosen, a psychiatrist, but
she had to change to Nurse Practitioner ("NP")
Marilyn Sullivan because her insurance plan changed. (Tr.
90). Plaintiff was still struggling to control her symptoms,
(Tr. 92), but she desired to return to work and be functional
and productive (Tr. 101).
Vocational Expert's Testimony
Kopar described Plaintiffs work history, and the associated
exertional levels required of an advertising clerk
(semi-skilled, sedentary exertion) and a leasing agent
(skilled, light exertion). (Tr. 95-96). The ALJ asked the VE
to assume a person of Plaintiffs age, education, and work
experience who could:
Perform work at all exertional levels, with no climbing of
ladders, ropes, or scaffolds. Work involves understanding,
carrying out and remembering no more than a few simple
instructions. Work is routine and repetitive, involving only
a few if any changes in the work setting, no fast paced
production rate work, work does not involve hazards such as
dangerous moving mechanical parts or machinery that could
cause bodily injury or work in height exposed places. Work
involves no more than occasional interaction with the public,
supervisor or coworkers, and work tasks are well defined
requiring no more than occasional simple decision making or
use of independent judgment to compete tasks.
96). The ALJ asked the VE whether such a hypothetical person
could perform any of Plaintiff s past relevant work; the VE
responded that such a person could not. (Tr. 96- 97). The ALJ
then asked if there was other work in the national economy
that this hypothetical person could perform. (Id.).
The VE said that such a person could work as: (1) a laundry
worker (unskilled, medium exertion), for which there were
over 200, 000 positions in the national economy and 6, 000 in
New York State; (2) a cleaner (unskilled, light exertion),
for which there were over 1, 000, 000 positions in the
national economy and 30, 000 in New York State; and (3) a
sorter (unskilled, light exertion), for which there were over
300, 000 positions in the national economy and 72, 000
regionally. (Tr. 97).
then asked the VE about the customary tolerance levels of an
employer regarding breaks and absences. (Id.). VE
Kopar testified that for unskilled work, employers would
typically tolerate one half day to one day per month of
employee absence, totaling 6 to 12 days a year.
(Id.). She further testified that an employer would
customarily permit two 15-minute breaks and a half hour lunch
during a work day, and would tolerate an employee being off
task for 15 percent of a work day. (Tr. 98). Employer
tolerances for unscheduled breaks would depend on the
employer and whether the break took place at the
employee's work station. (Id.).
Second Hearing: December 17, 2014
time of the second hearing held before ALJ O'Brien,
Plaintiff was 46 years old. (Tr. 109). Plaintiff reiterated
her personal information, including her living situation,
height, weight, and education. (Tr. 109-10). While working at
The Democrat and Chronicle, Plaintiff received a
certification in "Mac art, Mac design, " but since
then, computer technology and graphic arts had changed
significantly. (Tr. 110-11). Plaintiff could drive, but she
would not drive on expressways or after dark. (Tr. 112).
O'Brien next asked about Plaintiffs most recent job as a
classified ad taker at the Democrat and Chronicle, as well as
jobs she had previously held. (Tr. 113). At the newspaper,
she would handle incoming calls for ads, and she sometimes
had to make outgoing calls. (Id.). Plaintiff
testified that this was the most difficult part of the job,
and while she would do well during manic episodes, depressive
periods made it impossible for her to "even lift the
phone." (Id.). She performed her work while
seated, and had to take a certain number of calls to meet a
to her job at The Democrat and Chronicle, Plaintiff worked
"taking text" for Nothnagle for two months. (Tr.
113-14). Plaintiff would review real estate listings for
typographical errors and send them to newspapers or other
print sources. (Tr. 114).
to Nothnagle, Plaintiff held a positon at Webster Manor
Apartments. (Id.). Plaintiff worked part-time as a
rental agent, who would take prospective tenants to view
apartments. (Tr. 115). She had also worked at Waverly Wood
Apartments in a similar positon. (Id.). Plaintiff
briefly worked at Greater Rochester Advertisers, and prior to
that she held a part-time positon at Geva Theatre where she
made sales calls. (Tr. 116). Plaintiff had also worked
part-time at Rochester Info-Courses, where she registered
guests, baked cookies, and worked in the bookstore. (Tr.
O'Brien asked Plaintiff why she felt she could not work.
(Tr. 120). Plaintiff stated:
[F]rom day to day I don't know where I'm going to be.
I don't know emotionally what state I'm going to be
in. Currently I'm very weepy. I have actually said to my
husband that I am suicidal, within the last month. . . . I
have a very limited capacity to be around people. I
don't-at my best I believe I could be around people for
maybe an hour or so, and then I need to go home. I need to
retreat and kind of rebuild my strength, my energy. Even on
my best days I have to lay down for two hours a day and
recharge . . . . It's just that not knowing if I'm
going to have an up or a down day. . . . I don't know how
I, I come cross to people. Sometimes I, I believe I'm
really doing very well, and I realize later on that I
didn't come across as doing very well at all.
121). Plaintiff indicated that she was on Depakote and was
taking Klonopin as needed. (Tr. 121-22). Plaintiff also
testified that she used to participate in self-help groups,
but had been doing so less frequently. (Tr. 123). Plaintiff
stated further that she had held a leadership role in her
self-help groups for about two months, but she had stopped
because it "became exhausting" for her.
(Id.). She also attempted to start a meditation
group which she said "kind of fell apart too." (Tr.
testified that there was still a lot of stress in her home,
but she and her husband had been trying to keep things calm
for her daughter's sake during the holidays. (Tr. 125).
She stated that she and her husband had been attending
counseling together, but she did not find it helpful.
O'Brien then asked Plaintiff about her health care
providers. (Tr. 126). Dr. Rosen was Plaintiffs first
psychiatrist to diagnose her with bipolar disorder.
(Id.). Plaintiff transferred from Dr. Rosen to NP
Sullivan due to an insurance issue. (Id.). While
receiving treatment from NP Sullivan, Plaintiff went to Dr.
Jennifer Fleeman for therapy. (Tr. 127). At the time of the
hearing, Plaintiffs psychiatrist was Dr. Eric Rennert. (Tr.
asked about a specific note written by NP Sullivan, which
stated that Plaintiff was in remission. (Tr. 127). Plaintiff
said that she "did not agree with anything that Lyn
Sullivan did when she was [Plaintiffs] doctor." (Tr.
128). According to Plaintiff, NP Sullivan's records were
inaccurate. (Id.). ALJ O'Brien mentioned that NP
Sullivan noted that Plaintiff used marijuana twice in 2011,
even though other evidence in the record indicated that she
stopped using marijuana in December of 2009. (Id.).
then testified about the time she had left the family home
due to a manic episode. (Tr. 128-29). Plaintiff stated that
she was "sure there was alcohol and marijuana use"
during this time, but she did not remember it well. (Tr.
129). She testified that she had not used marijuana since
2009. (Tr. 130). In 2011, she had a conversation with Dr.
Rosen relating to her past marijuana use, and Dr. Rosen
became upset because marijuana could conflict with Plaintiffs
O'Brien asked Plaintiff to describe a typical day. (Tr.
131). Plaintiff said:
I get up in the morning at 6:00. I make sure that my son is
up. I usually go in a few times and make sure that he is. I
try to get him to eat breakfast, but he usually doesn't.
So I make sure he leaves with a water bottle ... I feel
it's important to be there when he wakes up in the
morning and when he comes home from school, so I try and
arrange my day so that I'm there for that. Once he's
off to school I usually have a cup of coffee to wake up, and
that's when I just start to pick up around the house.
Depending on my energy level, sometimes I can do that pretty
quickly, and other times I have to take a lot of breaks. I
try to plan my day around whatever has to be done outside of
(Id.). Plaintiff would drive, but she was only
comfortable driving to her two doctors' offices and to
group therapy. (Id.). Plaintiff stated that after
her son came back from school, she would usually make him
soup, and then they would both nap. (Tr. 132). Her husband
prepared dinner, and depending on how she felt, she would
clean up after dinner or leave it for the next day.
(Id.). Plaintiffs "biggest goal" at the
time was being present for her children. (Tr. 133).
Plaintiffs circle of friends consisted mostly of people she
met through her self-help group. (Id.). She did not
participate in any religious groups, clubs, or activities,
and attended only required school events for her son. (Tr.
believed that her illness negatively affected her job
performance at The Democrat and Chronicle. (Id.).
There were times that just showing up was the most I could
do. There were times just sitting at the desk and kind of try
[sic] to figure out what I'm doing. I was spending a lot
more time conversationally with people. That was something I
was told was a problem because they wanted me to move quicker
on the calls. And I was doing more talking than actually
moving people through. Making the outbound calls became a
134-35). Plaintiff confirmed that other employees in similar
positions kept ...