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Rivera v. Astrue

April 20, 2009


The opinion of the court was delivered by: Sean J. McLAUGHLIN, J.


Plaintiff, Carmen L. Rivera, commenced the instant action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of the final decision of the Commissioner of Social Security, who found that she was not entitled to supplemental security income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. Plaintiff filed an application for SSI on September 16, 2005, alleging disability since May 31, 2005 due to depression and post-traumatic stress disorder (Administrative Record, hereinafter "AR", at 66-72; 82). Her application was denied initially, and Plaintiff requested a hearing before an administrative law judge ("ALJ") (AR 37-39; 48; 50-54). A hearing was held on February 12, 2008, and on February 28, 2008, the ALJ found that Plaintiff was not disabled at any time through the date of his decision, and therefore was not eligible for SSI benefits (AR 19-26; 178-186). Plaintiff's request for review by the Appeals Council was denied (AR 5-10), rendering the Commissioner's decision final under 42 U.S.C. § 405(g). The instant action challenges the ALJ's decision. Presently pending before the Court are cross-motions for summary judgment. For the reasons set forth below, I will deny both motions and the matter will be remanded to the Commissioner for further proceedings.


Plaintiff was born on April 22, 1985 and was twenty-three years old on the date of the ALJ's decision (AR 66; 88). She attended school through the tenth grade in Puerto Rico (AR 86; 129). Her past relevant work experience was as an assembler in a plastics factory for approximately two months in 2003 (AR 74). Plaintiff was unable to communicate in English but was able to communicate in Spanish (AR 81).

Plaintiff was seen by Roger Esper, D.O., on several occasions for complaints of depression. On March 18, 2005, Dr. Esper diagnosed Plaintiff with depression and prescribed Lexapro (AR 126). Plaintiff complained on April 12, 2005 that the Lexapro was not working and Dr. Esper increased the dosage amount (AR 125). On April 25, 2005, Dr. Esper noted that Plaintiff continued to be depressed and needed someone to talk to; he continued her medication and referred her to Dr. Stillman (AR 125). Dr. Esper completed a Department of Public Welfare form stating Plaintiff suffered from major depression and was temporarily disabled from April 25, 2005 until March 25, 2006 (AR 122).

Plaintiff completed an Activities of Daily Living questionnaire on October 10, 2005 (AR 93-97). In this questionnaire, Plaintiff stated that she was able to care for her daughter, perform routine household chores, prepare meals, drive and handle her own bills (AR 93-94). She further stated, however, that she never left home without a family member accompanying her, was afraid of strangers, had no friends outside her family and feared her neighbors (AR 93-95). Plaintiff claimed she was unable to finish projects, follow a schedule, retain instructions, make decisions on her own, keep up with her work, concentrate for extended periods of time and had trouble getting along with supervisors and/or co-workers (AR 94-97).

On October 12, 2005, Betty Ferguson, a Counselor at the Crime Victim Center of Erie County, indicated that Plaintiff first contacted their agency on July 15, 2005 and requested counseling (AR 119).

On October 17, 2005, Dr. Esper reported that he treated Plaintiff on two occasions for depression and that she had stopped taking her antidepressant medication because she was in her second trimester of pregnancy (AR 121).

Progress notes dated October 17, 2005 from Belinda Stillman, D.O., reflect that Plaintiff was seven months pregnant and continued to complain of nightmares with respect to her previous miscarriage (AR 157). Dr. Stillman diagnosed Plaintiff with generalized anxiety disorder and major depressive disorder and increased her Prozac dosage (AR 157).

On November 17, 2005, Plaintiff complained of sleep disturbances, forgetfulness, fear of strangers in public places, sadness and occasional nightmares (AR 157). Dr. Stillman continued her on Prozac and increased her Ambien dosage (AR 157).

Plaintiff was psychologically evaluated on November 18, 2005 by Glenn Bailey, Ph.D. (AR 129-134). Plaintiff reported to Dr. Bailey that she was unmarried and lived with her aunt and daughter who was one year old (AR 130). She further reported a previous miscarriage and relayed a history of physical abuse from her mother (AR 129-130). Plaintiff claimed she had trouble sleeping, suffered from nightmares wherein she heard her dead child crying and had a poor appetite (AR 130-131). Plaintiff admitted suicidal thoughts but had never attempted to kill herself (AR 130). She indicated she was seeing a psychiatrist, receiving therapy and taking medication (AR 131).

On mental status examination, Dr. Bailey reported that Plaintiff presented as shy and quite anxious, exhibited a flat affect and her hands shook (AR 129; 131). She was unable to perform serial 7's and could not read or write (AR 131). She was able to produce clear and concise speech, although it was in Spanish, and her thought processes were intact (AR 132). No obsessions were noted during the examination, but Plaintiff stated she was fearful going out in public and did not leave her home unless someone was with her (AR 132). No delusions were reported but Dr. Bailey noted there were "questionable" auditory hallucinations (AR 132). Dr. Bailey found that she was in the low average, possibly borderline range of intellectual ability (AR 132). Her impulse control was sufficient and there were no known problems with her social judgment (AR 133). Dr. Bailey stated that her insight appeared to be "very poor" and he considered her prognosis "poor" unless she received proper psychiatric help (AR 133).

Dr. Bailey found that, based on Plaintiff's own description, she was able to perform normal household activities such as cleaning, maintaining a residence, paying her bills and maintaining her own health and hygiene without any significant problems (AR 133). She did not socialize, which Dr. Bailey indicated could be due to the language/cultural barrier or her shyness (AR 133). He found Plaintiff's ability to stay focused fluctuated based on her admission that she was unable to follow through with what she started (AR 133-134). He recommended that she seek outpatient mental health treatment, take English classes and be administered an IQ test in Spanish (AR 134). He diagnosed Plaintiff with major depression, recurrent, post-traumatic stress disorder and social phobia, and assigned her a Global Assessment of Functioning ("GAF") score of 50 (AR 134).*fn1

In connection with his evaluation, Dr. Bailey completed a Mental Functional Assessment form and concluded that Plaintiff was able to understand, remember, and carry out short, simple instructions; was slightly limited in her ability to understand and remember detailed instructions; and was only moderately limited in her ability to carry out detailed instructions and make simple work-related decisions (AR 127).

On December 1, 2005, Dalton Raymond, Ph.D., a state agency reviewing psychologist, completed a Mental Residual Functional Capacity Assessment form, and found that Plaintiff was not significantly limited in a number of areas, but was moderately limited in her ability to understand, remember and carry out detailed instructions and maintain attention and concentration for extended periods (AR 148). She was also moderately limited in her ability to work in coordination with or proximity to others without being distracted by them; accept instructions and respond appropriately to criticism from supervisors; get along with co-workers without distracting them; and respond appropriately to changes in the work setting (AR 148-149). On a Psychiatric Review Technique form completed the same date, Dr. Raymond concluded that Plaintiff had a mild restriction of activities of daily living; moderate difficulties in maintaining social functioning and in maintaining concentration, persistence or pace; and had no repeated episodes of decompensation of extended duration (AR 145). Dr. Raymond also found there was no evidence that Plaintiff was completely unable to function independently outside of her home (AR 146).

According to Dr. Raymond, Plaintiff could perform simple, routine, repetitive work in a stable environment; could understand, retain and follow simple job instructions; and make simple decisions (AR 150). Her daily activities and social skills were functional from a psychiatric standpoint (AR 150). Dr. Raymond found she could function in a production oriented job requiring little independent decision-making and could manage the mental demands of many types of jobs not requiring complicated tasks (AR 150). He concluded Plaintiff could "meet the basic mental demands of competitive work on a sustained basis despite the limitations resulting from her impairment" (AR 150).

Plaintiff returned to Dr. Stillman on January 5, 2006 and reported that she was unable to leave her home by herself and was constantly tearful (AR 156). She reported suffering from suicidal ideations on a daily basis, but was able to control her thoughts due to her children (AR 156). She claimed she was scared of "everything" and continued to have sleep disturbances, a decreased appetite, forgetfulness and nightmares about her miscarriage and abuse from her mother (AR 156). Dr. Stillman diagnosed Plaintiff with generalized anxiety disorder, major depressive disorder and post-partum depression (AR 156). She increased Plaintiff's Prozac dosage and started her on Remeron (AR 156).

On February 9, 2006, Plaintiff reported poor sleep, a fear of strangers and nightmares of past traumas (AR 156). Dr. Stillman noted that she only had thoughts of self-harm "once in a blue moon" and her appetite had improved (AR 156). Plaintiff reported that her baby slept more at night and her sister helped with childcare (AR 156).

Plaintiff returned to Dr. Stillman on August 7, 2006 and reported that the Seroquel had been effective for her sleep disturbances (AR 155). She stated that she sometimes had thoughts of self-harm but was able to control them for her daughters, and heard voices with respect to her stillborn baby (AR 155). Plaintiff continued to complain of a decreased appetite (AR 155). Dr. Stillman assessed her with major depressive disorder and generalized anxiety disorder and continued her medication regimen (AR 155).

On September 14, 2006, Plaintiff complained of nighttime awakenings with anxiety and nightmares, but reported that she heard less voices (AR 154). Dr. Stillman increased her Paxil dosage (AR 154).

Plaintiff reported to Dr. Stillman on November 9, 2006 that she was doing fine and had no further nighttime awakenings and less nightmares (AR 154). Plaintiff claimed she suffered from nervousness during the day (AR 154). She was assessed with generalized anxiety disorder and major depressive disorder (AR 154).

On February 27, 2007, Plaintiff presented to the Millcreek Community Hospital emergency room with complaints of suicidal ideation and was evaluated by Dennis Borczon, M.D. (AR 171). Plaintiff relayed her past abuse history, as well as her previous stillbirth (AR 171). She complained of having nightmares centered on her stillborn child, as well as recurrences of past abuse (AR 171). Plaintiff reported hearing her dead baby crying at times, even while awake, and that she had intrusive thoughts with respect ...

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