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Fooks v. Berryhill

United States District Court, E.D. New York

January 17, 2018

Treina Fooks, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          Plaintiff is represented by Ronald L. Epstein of Grey and Grey, LLP. The Acting Commissioner is represented by Richard P. Donoghue, United States Attorney.

          MEMORANDUM AND ORDER

          JOSEPH F. BIANCO, DISTRICT JUDGE.

         Plaintiff Treina Fooks (“plaintiff”) commenced this action pursuant to 42 U.S.C. § 405(g) of the Social Security Act (“SSA”) challenging the final decision of the Commissioner of Social Security (the “Commissioner”)[1] denying plaintiff's application for social security disability benefits. (ECF No. 1.) An Administrative Law Judge (“ALJ”) determined that plaintiff had the residual functional capacity to perform certain “sedentary work” as defined in 20 C.F.R. 404.1567(a).[2] The ALJ determined that plaintiff is further limited to unskilled tasks in a low-stress job. The ALJ then determined that there were a significant number of jobs in the national economy that suited plaintiff's limitations, and, therefore, that plaintiff was not disabled. The Appeals Council denied plaintiff's request for review.

         Plaintiff now moves for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). (ECF No. 7.) The Acting Commissioner opposes the motion and cross-moves for judgment on the pleadings.

         For the reasons set forth below, the Court denies plaintiff's motion for judgment on the pleadings, and grants the Acting Commissioner's cross-motion for judgment on the pleadings.

         I. FACTUAL BACKGROUND

         The following summary of the relevant facts is based upon the Administrative Record (“AR”) developed by the ALJ. (ECF No. 6.) A more exhaustive recitation is contained in the parties' submissions to the Court and is not repeated herein.

         A. Personal and Work History

         Plaintiff was born in 1970 and was 42 years old at the onset of her disability on October 16, 2012. (AR at 12, 72.) Plaintiff received a high school education, and completed a year of college. (Id. at 37.) Plaintiff's past relevant work history includes participating in a work-study program at Suffolk County Community College, caring for the elderly and disabled at an elderly care home, working as a customer service representative at a promotional company, working as a teacher's aid in the Central Islip School District, and working as a certified nurse's assistant at the Patchogue Nursing Center. (Id. at 38-41.) Plaintiff was working at the elderly care facility on October 16, 2012 when she stopped working due to a fall that she alleges caused injury to her foot, ankle, and lower back. (Id. at 43.)

         During her hearing before ALJ Patrick Kilgannon on June 16, 2015, plaintiff reported that she lived with her 20-year-old daughter. (Id. at 42.) On a typical day after her injury, plaintiff stated that she performed personal care, did laundry, cleaned in places that did not require bending or climbing, and watched television, read, and wrote. (Id. at 20, 178.) Plaintiff reported that she would go out two to three times a week and that she could travel alone by walking or using public transportation. (Id. at 20.) Plaintiff reported that she had a dr i ver 's l i cense but di d not own a car. (Id. at 177, 178.) Plaintiff reported that she could go food shopping and pay her bills, and that she would spend time with others approximately two times a month. (Id. at 20.) She reported that she had no problems getting along with family, friends, neighbors, and authority figures, and that she could follow spoken and written instructions. (Id.) Plaintiff reported that she was taking medication including Latuda, Setrasaline, Lodapine, and Lumigan. (Id. at 55.)

         B. Relevant Medical History

         Plaintiff was admitted to Southside Hospital on October 16, 2012. (Id. at 223.) Plaintiff's chief complaints were of left ankle injury, ankle swelling, and ankle pain that she sustained from a fall that occurred “just prior to presentation” at the hospital. (Id.) Plaintiff reported that her only past medical history was a “history of hypertension.” (Id.) The hospital record indicated that plaintiff had a normal respiratory rate and was alert and oriented to time, person, and place. (Id. at 224.) The record indicated that, upon a nursing assessment of plaintiff's lower left leg, plaintiff denied numbness/tingling and had a full range of motion. (Id.) The same document indicated that plaintiff rated her pain as a six out of ten. (Id. at 225.) Plaintiff's psychological assessment revealed that plaintiff reported no thoughts of suicide in the prior two months, and had never attempted to commit suicide. (Id.) Plaintiff was discharged with an ankle stirrup splint and was instructed to follow up with a doctor in two to three days. (Id. at 226.) A radiology report from this hospital visit found a “widening of the first [sic] second cuneiform joint space which may indicate a Lisfranc fracture. Remaining osseous structures intact.” (Id. at 227.) The radiology report also states that “[n]o facture is seen. The tibiotalar articulation appears intact. The medial malleolus and lateral malleolus each appear intact. Soft tissues are intact.” (Id. at 228.)

         Plaintiff was examined by Jhansi Rao, M.D. (“Dr. Rao”) on October 18, 2012. (Id. at 230.) At this time, plaintiff reported a pain level of moderate, rated four to six. (Id.) Dr. Rao reported normal respiratory movements and normal breathing sounds. (Id. at 231.) Dr. Rao also reported that plaintiff was oriented to time, place, and person. (Id.) Dr. Rao told plaintiff to treat the injury with ice, rest, compression, and elevation. (Id.)

         Plaintiff was examined by Paul Dicpinigaitis, M.D. (“Dr. Dicpinigaitis”) on November 5, 2012. (Id. at 247.) Plaintiff's chief complaints were injury to her left ankle, with acute onset of pain, some swelling, and difficulty walking/bearing weight on her ankle. (Id.) Plaintiff reported a pain rating of nine out of ten. (Id.) Dr. Dicpinigaitis performed X-rays on plaintiff's left leg and foot. (Id.) No X-ray showed any obvious fractures, dislocations, or gross arthropathies. (Id.) Dr. Dicpinigaitis noted that plaintiff had a history of lower back pain. (Id.) Plaintiff was also complaining of “bilateral leg numbness, weakness, and tingling, especially in the area of the ankle/feet.” (Id.) Upon physical examination of plaintiff, Dr. Dicpinigaitis noted that plaintiff walks with an antalgic gait. (Id. at 248.) He also noted a slightly restricted range of motion of plaintiff's ankle due to pain and swelling, yet plaintiff's ankle was stable to gentle stress upon examination. (Id.) Regarding plaintiff's back pain, Dr. Dicpinigaitis noted “some” pain and restricted terminal range of motion and terminal flexion and extension. (Id.) Lumbosacral spine was stable to stress on examination. (Id.) Plaintiff was prescribed Motrin and Percocet for pain control purposes and instructed to begin physical therapy/rehabilitation for her ankle. (Id.) Plaintiff was also instructed to follow up regarding her back pain (Id.)

         Dr. Rao followed up with plaintiff on November 12, 2012. (Id. at 233.) Plaintiff reported that her pain level was moderate, rated eight to nine out of ten. (Id.) Plaintiff reported a history of asthmatic bronchitis and asthma. (Id. at 234.)

         Dr. Dicpinigaitis followed up with plaintiff on December 26, 2012. (Id. at 250.) Plaintiff still complained of left ankle pain. (Id.) Dr. Dicpinigaitis noted that plaintiff continued to walk with a mild antalgic gait at normal walking speed. (Id. at 251.) Plaintiff was prescribed a CAM walker/fracture boot at this time, and was advised to continue physical therapy and rehabilitating her ankle. (Id.)

         Dr. Dicpinigaitis followed up with plaintiff again on January 7, 2013. (Id. at 252.) At that time, plaintiff had had an MRI of both her ankle and her lumbosacral spine. (Id.) Dr. Dicpinigaitis wrote that he identified from plaintiff's ankle MRI a chronic achy FL tear with scar remodeling. (Id.) He also identified lower lumbar spondylosis with left-sided foraminal disc protrusion at ¶ 4-5 contacting the exiting left L4 nerve root. (Id.) Plaintiff received an injection in her left ankle of a lidocaine/steroid preparation and was told to continue physical therapy for her ankle and back. (Id. at 253.)

         Plaintiff was examined by an independent medical examiner, Robert Moriarty, M.D. (“Dr. Moriarty”) on January 8, 2013. (Id. at 236.) Dr. Moriarty's inspection of plaintiff's left foot revealed no visible deformities. (Id. at 238.) Further inspection revealed tenderness over the dorsolateral aspect of the foot to palpation, mild weakness to ankle dorsiflexion, a plantar flexion of five out of five strength, and no instability. (Id.) Dr. Moriarty concluded that plaintiff was “temporary moderate partial (50%)” disabled. (Id.)

         Dr. Dicpinigaitis followed up with plaintiff on March 11, 2013. (Id. at 255.) Plaintiff noted “some initial improvement” in symptoms from the cortisone injection from her last follow-up visit. (Id.) Plaintiff also noted that her ankle pain could still reach up to eight to nine out of ten. (Id.) Dr. Dicpinigaitis advised plaintiff that, at that time, she should either accept her symptoms as they were, or consider surgical intervention. (Id. at 256.)

         Plaintiff was examined by Daniel Brandenstein, D.O. (“Dr. Brandenstein”) on March 26, 2013. (Id. at 245.) Plaintiff's chief complaint was lumbago, and that the pain had been worsening. (Id.) Plaintiff stated that aggravating factors were standing, lying down, and activity in general, and that there were no alleviating factors. (Id.) Plaintiff claimed that her pain at examination was approximately eight to nine and, at its worst, ten. (Id.) Dr. Brandenstein found that plaintiff's leg motor strength was “easily” five out of five, and range of motion was “actually relatively well maintained” with forward flexion to approximately 45-50 degrees. (Id. at 246.) Dr. Brandenstein noted that her MRI demonstrated some lumbar degenerative changes at ¶ 4-5 and L5-S1. (Id.)

         Dr. Brandenstein followed up with plaintiff on July 2, 2013. (Id. at 242.) At this time, plaintiff was seen for her back pain. (Id.) Dr. Brandenstein noted visible signs of depression (tearfulness). (Id.) Plaintiff stated that she was depressed due to her chronic pain. (Id.) Plaintiff was prescribed Cymbalta and advised to see Dr. Elaine Schaefer for psychiatric follow-up. (Id. at 242, 243.)

         Plaintiff was examined by Elaine Schaefer, D.O. (“Dr. Schaefer”) on July 29, 2013. (Id. at 430.) Plaintiff reported herniated discs in her back and a sprained left ankle. (Id.) Plaintiff reported that her ankle “still hurts her and gets swollen, ” and that the pain was worse with movement. (Id.) Dr. Schaefer noted that she was referred by orthopedics (Dr. Brandenstein) because plaintiff found that she was “crying all the time, ” and had a lack of motivation. (Id.) Plaintiff reported a history of depression. (Id.) Plaintiff reported that her concentration was “not good, ” and that she had trouble paying attention. (Id.) Plaintiff reported having “a loss of interest in doing things.” (Id.) Plaintiff reported that she did not have suicidal or homicidal ideations or plans. (Id.) Plaintiff reported that she was interested in restarting medication, and that she was optimistic that she would feel better in the future and was optimistic for her future. (Id.) In a psychiatric exam, Dr. Schaefer noted that plaintiff was oriented to person, place, and time. (Id. at 432.) Plaintiff's insight and judgment were reportedly intact. (Id.) Dr. Schaefer also noted that plaintiff had no eye pain, no eyesight problems, no shortness of breath, no wheezing, and no cough. (Id. at 431.) Dr. Schaefer prescribed Zoloft to help plaintiff with her depression. (Id.)

         Dr. Schafer examined plaintiff again on October 4, 2013. (Id. at 427.) Plaintiff reported that she was already feeling better on Zoloft, but asked for her prescription to be refilled for continued use. (Id.) Plaintiff reported that she was examined by a psychiatrist for evaluation and was advised to stay on Zoloft. (Id.) Plaintiff's daughter was present for this examination, and noted a positive difference in plaintiff. (Id.) Plaintiff reported that she was eating and sleeping well. (Id.) Plaintiff reported that her concentration was better and that she felt more active and more positive than she had at her previous visit with Dr. Schaefer. (Id.) Plaintiff reported that she did not have suicidal or homicidal ideations or plans. (Id.) In a psychiatric exam, Dr. Schaefer noted that plaintiff was oriented to person, place, and time. (Id. at 429.) Plaintiff's insight and judgment were reportedly intact. (Id.) Dr. Schaefer also noted that plaintiff had no eye pain, no eyesight problems, no shortness of breath, no wheezing, and no cough. (Id. at 428.) Dr. Schaefer re-prescribed Zoloft to treat plaintiff's depression. (Id.)

         Plaintiff was examined by Paul Herman, Ph.D. (“Dr. Herman”) for a psychiatric evaluation on October 23, 2013. (Id. at 260.) Dr. Herman noted as background information the fact that plaintiff left work in 2012 due to medical, not psychiatric difficulties. (Id.) Dr. Herman's notes about plaintiff's psychiatric history include that plaintiff had not been hospitalized or treated for psychiatric reasons, but includes her recent prescription of psychiatric medication sertraline though a general M.D. (Id.) Dr. Herman noted that plaintiff's “current functioning” included difficulty falling asleep and staying asleep due to sleep apnea, varying appetite, and occasional tearfulness when ruminating about her life difficulties, including her financial problems, medical problems, lack of work, uncertain future, and chronic pain. (Id.) Plaintiff also reported that she was experiencing a lack of motivation. (Id. at 261.) Dr. Herman noted that no other psychiatric or psychological symptoms were reported. (Id.) Dr. Herman noted that plaintiff's thought process was coherent and goal directed with no evidence of hallucinations, delusions, or paranoia in the setting. (Id.) Plaintiff reported no significant difficulties with activities of daily living related to psychological or psychiatric issues. (Id.) Dr. Herman wrote that from a psychological/psychiatric perspective, there did not appear to be evidence of significant limitation with respect to plaintiff's ability to follow and understand simple directions and instructions, perform simple tasks, maintain attention and concentration, maintain a regular schedule, learn new tasks, and make appropriate, simple, work-related decisions. (Id. at 262.) Dr. Herman did note, however, that there did appear to be evidence of moderate limitation with respect to plaintiff's ability to perform complex tasks and appropriately deal with stress. (Id.) Dr. Herman concluded that plaintiff's psychiatric problems did not appear to be significant enough to interfere with her ability to function on a daily basis. (Id.)

         Plaintiff was examined by Saadia Wasty, M.D. (“Dr. Wasty”) on November 18, 2013. (Id. at 265.) Plaintiff's chief complaints were lower back and ankle pain. (Id.) Plaintiff rated her back pain as an eight or nine out of ten. (Id.) Plaintiff stated that nothing relieved the pain. (Id.) Plaintiff rated her ankle pain to be seven or eight out of ten. (Id.) Plaintiff stated that she found relief with rest and elevation. (Id.) Plaintiff stated that she had had asthma since 1987, but had not had any admissions to the hospital for asthma. (Id.) Plaintiff stated that she had an inhaler, and experienced shortness of breath on heavy exertion. (Id.) Plaintiff also stated that she had had depression since 1987. (Id. at 266.) Plaintiff had had no hospitalizations due to depression, and denied suicidal or homicidal ideations. (Id.) Plaintiff also stated that she was diagnosed with glaucoma in 2004. (Id.) Plaintiff stated that she had intermittent pain in her right eye, which was associated with visual color changes, and was aggravated with reading. (Id.) Plaintiff rated her pain as a five to seven out of ten. (Id.) Dr. Wasty noted that plaintiff had a normal gait, but had difficulty walking on her heels or toes. (Id. at 267.) Plaintiff did not use an assistive device, and was able to rise from a chair without difficulty. (Id.) Dr. Wasty noted that plaintiff's lumbar spine flexion was 80 degrees, extension 10 degrees, and lateral flexion 30 degrees bilaterally. (Id. at 268.) Dr. Wasty noted full range of motion of hips, knees and ankles bilaterally. (Id.) Dr. Wasty noted no redness, heat, swelling, or effusion. (Id.) In a medical source statement, Dr. Wasty found that plaintiff had moderate to marked limitation to squatting and kneeling, and moderate limitation to long periods of sitting, standing, walking, bending forward, and heavy lifting. (Id. at 269.) Dr. Wasty further found that plaintiff should avoid heavy exertion due to asthma, and avoid environments with smoke, dust, and all known respiratory irritants due to asthma. (Id.) Dr. Wasty recommended a psychological evaluation. (Id.)

         Plaintiff was examined by Robert Hecht, M.D. (“Dr. Hecht”) on January 13, 2014. (Id. at 301.) Dr. Hecht reported that plaintiff had tenderness in the lumbar spine and restricted range of motion. (Id.) Dr. Hecht also noted that plaintiff had tenderness and restricted range of motion with her left ankle. (Id.) Dr. Hecht diagnosed plaintiff with lumbosacral sprain-strain and derangement of the left ankle, “secondary to a work injury that occurred on October 16, 2012.” (Id.)

         Dr. Hecht followed up with plaintiff on January 27, 2014. (Id. at 300.) After examining the MRI results of plaintiff's left ankle and spine, Dr. Hecht noted that plaintiff had a chronic anterior talofibular ligament tear in her left ankle, and disc protrusion L4-L5 contacting the L5 nerve root in her lumbar spine. (Id.) Dr. Hecht noted the same tenderness and restricted range of motion in both the lumbar spine and left ankle as at previous visits. (Id.)

         Dr. Schaefer examined plaintiff at a follow-up visit on February 14, 2014. (Id. at 424.) Plaintiff reported feeling “much better” on Zoloft. (Id.) Plaintiff reported that she had no crying episodes while on Zoloft, and that she had become more social. (Id.) Plaintiff reported that her family had noticed a positive change in her. (Id.) Plaintiff reported that her concentration was better and that she was doing better at work. (Id.) Plaintiff reported that she had a “better attitude.” (Id.) Plaintiff reported that her appetite was “so-so.” (Id.) Plaintiff reported that she did not have suicidal or homicidal ideations or plans. (Id.) In a psychiatric exam, Dr. Schaefer noted that plaintiff was oriented to person, place, and time. (Id. at 426.) Plaintiff's insight and judgment were reportedly intact. (Id.) Plaintiff was re-prescribed Zoloft. (Id.)

         Dr. Hecht followed up with plaintiff on April 14, 2014. (Id. at 365.) Dr. Hecht noted the same tenderness and restricted range of motion in both the lumbar spine and left ankle as at previous visits. (Id.) Dr. Hecht injected Depo-Medrol 80mg and Lidocaine to plaintiff's right lower lumbar paravertebral trigger point. (Id.) Dr. Hecht noted that plaintiff was not interested in physical therapy or further pain management. (Id.)

         Plaintiff was examined by Dr. Schaefer again on April 21, 2014. (Id. at 421.) Plaintiff reported having received injections into her back and left ankle from Dr. Hecht. (Id.) Plaintiff reported that she did not find that physical therapy was helping. (Id.) Dr. Schaefer noted plaintiff's history of depression, as well as her Zoloft prescription. (Id.) Plaintiff reported “feeling great on it, ” and that she felt “a lot calmer.” (Id.) Plaintiff's daughter, who was present for the examination, also reported a positive change in plaintiff's behavior. (Id.) Plaintiff reported being more energetic and in better spirits. (Id.) Plaintiff reported that she was eating and sleeping well. (Id.) In a psychiatric examination, plaintiff was reportedly oriented to person, time, and place. (Id. at 422.) Plaintiff's insight and judgment were intact and her mood was normal. (Id.) Plaintiff was reportedly talkative and pleasant, and had good eye contact. (Id.) Plaintiff's patient health questionnaire (“PHQ”) calculated a severity index of 2, and a diagnosis of “minimal” depression. (Id.) In her assessment, Dr. Schaefer noted “depression” and renewed plaintiff's Zoloft prescription. (Id. at 423.)

         Dr. Hecht followed up with plaintiff on June 23, 2014. (Id. at 370.) Plaintiff reported that the injection Dr. Hecht administered in her lumbar spine at the last visit did not help. (Id.) Dr. Hecht noted the same tenderness and restricted range of motion in plaintiff's left ankle and lumbar spine as at earlier visits. (Id.) Dr. Hecht administered another injection of Depo-Medrol 80mg and Lidocaine into plaintiff's ankle. (Id.) Dr. Hecht reported that the procedure was well tolerated. (Id.) Dr. Hecht recommended lumbar orthosis for better control of plaintiff's back pain and orthosis for the left ankle to better control the pain and increase stability. (Id.)

         Plaintiff returned to see Dr. Hecht on July 21, 2014. (Id. at 375.) Plaintiff reported that the injection she received on June 23, 2014 in her left ankle had helped, and that she would like to try one for her back. (Id.) Dr. Hecht noted the same tenderness and restricted range of motion in both the lumbar spine and left ankle as at previous visits. (Id.) Dr. Hecht administered the same injection to plaintiff's left lower lumbar paravertebral trigger point as he had to plaintiff's ankle. (Id.) Dr. Hecht noted that the procedure was well tolerated. (Id.)

         Plaintiff was examined by Hanna Ehab, M.D. (“Dr. Ehab”) on August 6, 2014. (Id. at 460.) During a depression screening, plaintiff took a patient health questionnaire and got a score of 9, mild depression. (Id.) Plaintiff reported little interest or pleasure in “doing things, ” and several days of feeling down, depressed or hopeless. (Id.) In this questionnaire, plaintiff reported that nearly every day she had trouble falling or staying asleep, or that she was sleeping too much. (Id.) Plaintiff reported that nearly every day she felt tired or had little energy. (Id.) Plaintiff reported that nearly every day, she had a poor appetite or was overeating. (Id.) Plaintiff reported that “several days” she felt bad about herself or that she was a failure, or had let her family down. (Id.) Plaintiff reported that “several days” she had thoughts that she would be better off dead or of hurting herself in some way. (Id.) Plaintiff reported that she ran out of psychiatric medication a month prior, but did not follow up with the psychiatrist. (Id.) Plaintiff also reported that, in the few days prior to her visit, she had had negative thoughts and cried a lot. (Id.) In a review of her symptoms, plaintiff denied shortness of breath at rest and shortness of breath with exertion, and denied wheezing. (Id. at 461.) Dr. Ehab refilled plaintiff's prescription for sertraline for her depression, and referred her to psychiatry. (Id. at 464.)

         Dr. Moriarty examined plaintiff again on September 2, 2014. (Id. at 441.) Plaintiff reported receiving injections from Dr. Hecht to her lower back and left ankle. (Id. at 442.) Plaintiff reported pain and stiffness to her left ankle. (Id.) Plaintiff reported that her ankle felt unstable when she walked for long distances. (Id.) Plaintiff reported pain in her lower back that radiated down her left leg. (Id.) Plaintiff also reported the sensation of tingling in her left lateral calf and left ankle and the outer aspect of her left foot. (Id.) Dr. Moriarty noted that there was tenderness over the lateral aspect of the ankle in response to palpation. (Id. at 443.) Dr. Moriarty also noted that range of motion testing to the ankle revealed a mild restriction in dorsiflexion, a mild restriction in plantar flexion, and a mild restriction in eversion. (Id.) Dr. Moriarty noted that plaintiff's left foot demonstrated mild weakness to dorsiflexion. (Id.) Dr. Moriarty noted that plaintiff walked with a slight limp on her left side. (Id.) Dr. Moriatry's impression was a left ankle sprain/strain with chronic ongoing symptomatology. (Id.) Dr. Moriarty noted that the best treatment for plaintiff at this point would be a self-directed home exercise program, efforts at weight loss, and the use of an ankle support brace. (Id. at 444.) Dr. Moriarty found that plaintiff appeared to have achieved maximal medical improvement as to her ankle injury, and that the case was “amenable to a scheduled loss of use regarding the left ankle.” (Id.) Dr. Moriarty found that, due to the chronic ankle sprain with persistent pain and some motion loss, plaintiff demonstrated a 20% scheduled loss of use of the left foot. (Id.)

         Plaintiff was admitted to the Catholic Charities Mental Health Services clinic in Bay Shore (“Catholic Charities”), New York, on September 19, 2014. (Id. at 273-90.) While at this mental health services facility, plaintiff was examined by nurse practitioner Anastasia Blanchard, the admitting physician was licensed clinical social worker Krista Ann Hoefling, and Isabel Tolentino, M.D. (“Dr. Tolentino”) signed Ms. Blanchard and Ms. Hoefling's report. (Id.)

         Plaintiff followed up with Dr. Hecht on October 13, 2014. (Id. at 379.) Dr. Hecht noted the same tenderness and restricted range of motion in both the lumbar spine and left ankle as at previous visits. (Id.) Dr. Hecht advised plaintiff to start physical therapy and use a straight cane to walk. (Id.) Plaintiff was not interested in another injection at this time. (Id.)

         Plaintiff was examined by Ms. Hoefling at the Catholic Charities Mental Health Services clinic on October 20, 2014. (Id. at 472.) Plaintiff reported an increase in depression over the past year since her ex-husband had died. (Id.) Plaintiff reported a poor appetite, and that she was sleeping too much. (Id.) Plaintiff reported that she had no motivation and low self-esteem. (Id.) Plaintiff reported isolating and passive suicidal ideation. (Id.) Plaintiff reported past sexual, physical and verbal abuse, and past manic moods. (Id.) Plaintiff reported that she had felt depressed for most of her life, and that she attempted suicide at the age of 12 when she took pills from her mother's cabinet. (Id.) Plaintiff reported that she was fired from her job as a home health aide because of her depression. (Id.) Plaintiff reported a history of physical abuse/neglect, verbal/emotional abuse, sexual abuse/molestation, and being a witness to violence and witnessing domestic violence, but plaintiff did not wish to discuss the details at that time. (Id. at 474-75.)

         Plaintiff followed up with Dr. Hecht on November 10, 2014. (Id. at 392.) Dr. Hecht noted the same tenderness and restricted range of motion in both the lumbar spine and left ankle as at previous visits. (Id.) Dr. Hecht administered the same injection to plaintiff's left ankle, and prescribed a trial of Mobic 15mg to be taken once a day. (Id.)

         Plaintiff had a psychiatric evaluation on November 12, 2014, performed by Ms. Blanchard at Catholic Charities. (Id. at 276.) In this evaluation, plaintiff reported that she had experienced increased depression for the past year, poor appetite, no motivation, isolation, passive suicidal ideation, and low self-esteem. (Id.) Plaintiff also reported past sexual, physical, and verbal abuse, past manic moods, and that she heard and had had conversations with a voice, but no one was there. (Id.) Plaintiff also reported that she had felt depressed for most of her life, and that she attempted suicide at the age of 12. (Id.) Plaintiff also alleged past sexual abuse from family members, including her biological father, her mother's friend, her uncle, and two of her friends. (Id. at 277.) Plaintiff also reported a bed-wetting problem, from age five until age 30. (Id.) Plaintiff reported a prolonged problem with comprehension. (Id.) Plaintiff scored 100% on a mood disorder questionnaire. (Id. at 278, 280.) Plaintiff reported passive suicidal ideation, no current plan or intent, and that she often thinks about her children. (Id. at 278.) When asked what her goals were, plaintiff stated that she wanted to manage her depression better. (Id. at 282.)

         Plaintiff was examined by Jalil Anwar, M.D. (“Dr. Anwar”) on December 12, 2014, for her sleeping problems. (Id. at 293.) Plaintiff underwent a polysomnography examination with a home sleep test. (Id.) After the test, Dr. Anwar diagnosed plaintiff with “severe obstruction sleep apnea with hypoxemia.” (Id.) Due to this diagnosis, plaintiff was prescribed and instructed to use a continuous positive airway pressure (“CPAP”) machine when sleeping. (Id.)

         Dr. Hecht examined plaintiff again on December 22, 2014. (Id. at 399.) Plaintiff reported that the injection administered to her left ankle at her last visit helped “a little bit.” (Id.) Dr. Hecht noted the same tenderness and restricted range of motion in both the lumbar spine and left ankle as at previous visits. (Id.) Dr. Hecht administered the same injection into plaintiff's left lower lumbar paravertebral trigger point. (Id.)

         Plaintiff was examined by Gary Kelman, M.D. (“Dr. Kelman”) on January 23, 2015. (Id. at 448.) Plaintiff reported to Dr. Kelman that she was receiving treatment with physical therapy three times per week, and chiropractic care once a month. (Id.) Plaintiff also reported to Dr. Kelman that she was provided with medical supplies, which included a back brace, an ankle brace, and a cane. (Id.) Plaintiff reported that she was specifically fitted for the durable medical equipment, which she received from her orthopedic doctor. (Id.) Plaintiff reported that she used the equipment “as often as possible.” (Id.) Plaintiff reported that she was “not really” better now than she when she started the treatment. (Id.) Plaintiff rated her pain as an eight out of ten. (Id.) Plaintiff reported that she could walk one-half city block without too much pain, and that she had difficulty with stairs. (Id.) Plaintiff reported that she could sit for ten to fifteen minutes without much pain. (Id.) Plaintiff stated that the pain worsened with reaching overhead, bending, and walking. (Id.) Dr. Kelman noted a mild limp and mild antalgic gait to the left leg. (Id.) In the range of motion testing for her lumbar spine, plaintiff had a flexion of 50 degrees, normal being 60 degrees, an extension of 20 degrees, normal being 25 degrees, a right lateral bending of 20 degrees, normal being 25 degrees, and a left lateral bending of 20 degrees, normal being 25 degrees. (Id.) In the left foot/ankle range of motion testing, plaintiff had a dorsiflexion of 10 degrees, normal being 20 degrees, plantar flexion of 35 degrees, normal being 40 degrees, an inversion of 20 degrees, normal being 25 degrees, and an eversion of 15 degrees, normal being 20 degrees. (Id.) Dr. Kelman diagnosed plaintiff with back pain and left ankle/foot sprain/strain. (Id.) Dr. Kelman reported that plaintiff was capable of returning to work with the following causally related restriction: no prolonged walking/standing, excessive stair climbing, vertical ladders, squatting, repetitive bending, or lifting over 40 lbs. (Id.)

         Dr. Hecht examined plaintiff again on February 16, 2015. (Id. at 405.) Plaintiff reported that the injection she had received at her last visit in her lower left back had helped. (Id.) Dr. Hecht noted the same tenderness and restricted range of motion in both the lumbar spine and left ankle as at previous visits. (Id.)

         Dr. Hecht examined plaintiff again at a follow-up visit on March 30, 2015. (Id. at 409.) Dr. Hecht noted the same tenderness and restricted range of motion in both the lumbar spine and left ankle as at previous visits. (Id.) Dr. Hecht administered the same injection to the left ankle that plaintiff received at previous visits. (Id.) Dr. Hecht advised plaintiff regarding treatment through physical therapy and proper care for her injuries. (Id.) Dr. Hecht also prescribed Flexeril 10mg three times a day as needed, and advised plaintiff not to work or drive when taking this medication if it made her drowsy. (Id.) Dr. Hecht also prescribed Ibuprofen 800mg three times a day as needed. (Id.)

         Dr. Tolentino filled out a mental impairment questionnaire regarding plaintiff on July 9, 2015. (Id. at 527.) Dr. Tolentino reported that she was seeing plaintiff for individual therapy twice a month. (Id.) Dr. Tolentino reported that plaintiff had been attending the clinic since October 20, 2014. (Id.) Plaintiff had reportedly canceled nine appointments to date. (Id.) When asked to describe the clinical findings that demonstrate the severity of plaintiff's mental impairment and symptoms, Dr. Tolentino noted “mood depressed, affect full, speech clear, thought process logical, perception within normal limits, admits to auditory hallucinations, insight judgment WNL [within normal limits].” (Id.) When asked to identify plaintiff's signs and symptoms, Dr. Tolentino checked boxes for the following: anhedonia or pervasive loss of interest in almost all activities; appetite disturbance with weight change; decreased energy; thoughts of suicide; mood disturbance; difficulty thinking or concentrating; persistent disturbances of mood or affect; emotional withdrawal or isolation; bipolar syndrome with a history of episodic periods manifested by the full symptomatic picture of both manic and depressive syndromes; hallucinations or delusions; emotional lability; manic syndrome; and sleep disturbance. (Id. at 528.)

         When asked about plaintiff's ability to do work-related activities on a day-to-day basis in a regular work setting, Dr. Tolentino checked the boxes corresponding with plaintiff's “mental abilities and aptitudes needed to do unskilled work” as follows: (1) unlimited or very good ability to: remember work-like procedures, work in coordination with or proximity to others without being unduly distracted, get along with co-workers or peers without unduly distracting them or exhibiting behavioral extremes, and be aware of normal hazards and take appropriate precautions; (2) unable to meet competitive standards: understand and remember very short and simple instructions, carry out very short and simple instructions, maintain attention for two-hour segments, maintain regular attendance and be punctual within customary, usually strict tolerances, sustain an ordinary routine without special supervision, make simple work-related decisions, complete a normal workday and workweek without interruptions from psychologically based symptoms, perform at a consistent pace without an unreasonable number and length of rest periods, ask simple questions or request assistance, accept instructions and respond appropriately to criticism from supervisors, respond appropriately to changes in a routine work setting, and deal with normal work stress. (Id. at 528-29.)

         When asked about plaintiff's “mental abilities and aptitudes needed to do semiskilled and skilled work, ” Dr. Tolentino noted that plaintiff was unable to meet competitive standards for all of the following: understand and remember detailed instructions, carry out detailed instructions, set realistic goals or make plans independently of others, and deal with stress of semiskilled and skilled work. (Id. at 529.) When asked about plaintiff's “mental abilities and aptitude needed to do particular types of jobs, ” Dr. Tolentino noted that plaintiff has unlimited or very good abilities to: interact appropriately with the general public, maintain socially appropriate behavior, and adhere to basic standards of neatness and cleanliness. (Id.) Dr. Tolentino also noted that plaintiff did not have a low IQ or reduced intellectual functioning. (Id. at 529-30.) Dr. Tolentino was also asked to indicate to what degree the next categories of functional limitations identified existed as a result of plaintiff's mental impairments, and noted that plaintiff had: a marked limitation[3]for restriction of activities of daily living, difficulties in maintaining social functioning, and deficiencies of concentration, persistence, or pace. (Id.) Dr. Tolentino noted that she anticipated that plaintiff ...


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