MICHAEL A. TELESCA, District Judge.
Plaintiff Krystal Kay Haymond ("Plaintiff"), represented by counsel, brings this action pursuant to Title XVI of the Social Security Act ("the Act"), seeking review of the final decision of the Commissioner of Social Security ("the Commissioner")
Plaintiff protectively filed an application for SSI on December 19, 2008, alleging disability beginning on September 8, 1984. T.115.
On April 1, 2009, gastroenterologist Dr. Kevin T. Robillard saw Plaintiff due to her complaints of difficulty swallowing, a recent change in her bowel habits, and rectal bleeding. T.271. Prior CT scans showed hepatic lesions, hydrosalpinx, heterogeneity to the uterus, and asymmetric thickening of the lower esosphagus.
On April 2, 2009, Plaintiff underwent a transvaginal and limited transabdominal pelvic ultrasound with doppler study at Windsong Radiology Group in Hamburg, New York, based upon a CT scan which showed a possible right hydrosalpinx. T.268-69. Dr. Cynthia Fan stated that there was a tubular, fluid-containing structure which could represent a small hydrosalpinx versus a right paraovarian cyst; a follow-up pelvic ultrasound was recommended. T.268.
On April 9, 2009, Dr. Robillard performed an upper endoscopy on Plaintiff, following her abnormal CT scan "suggestive of potentially esophageal neoplasm and dysphagia." T.264;
On November 9, 2009, Dr. Joseph G. Cardamone performed a right carpal tunnel release on Plaintiff. T.381. When Dr. Cardamone saw Plaintiff in follow-up on December 28, 2009, she was doing "fairly well" with a "bit of swelling" and "some tingling" in her right hand. T.387. Dr. Cardamone noted that she was still unable to work at that time.
On August 24, 2010, Plaintiff was seen by Dr. Annette Sunga at Roswell Park Cancer Institute regarding her liver hemangiomas. T.63-65. She had experiencing right upper quadrant abdominal pain for over a year, worsening after eating and with breathing, and unrelieved by pain medication.
Plaintiff returned to Roswell on August 31, 2010, noting that the pain now was radiating posteriorly and flank. T.66. Although she has confirmed hemangiomas, her symptoms could be caused by cholelithiasis or cholecystitis; accordingly, an ultrasound and other tests were ordered to rule out these conditions. T.67;
Plaintiff was seen at Roswell again on September 9, 2010, T.58-61, and September 21, 2010, T.55-57, by Dr. Boris Kuvshinoff. In addition to the abdominal pain, she was having chest pain. She apparently had a coronary angiogram at Millard Fillmore Gates on July 14, 2010. T.58. Dr. Kuvshinoff noted that he spent considerable time discussing treatment options for what appears to be a very symptomatic giant hemangioma. Plaintiff also appeared to have an active infection in her left lower lung, which was treated with Cipro. The plan was to perform a laparoscopic right hepatectomy on October 18, 2010. T.56. However, the administrative hearing was held on October 21, 2010. There are no further records regarding treatment Plaintiff received for her hemangioma.
On October 11, 2007, Dr. Kalalselvi Rajendran dictated a discharge summary for Plaintiff upon her release from the Niagara Falls Memorial Medical Center ("NFMMC") psychiatric unit. T.253-54. She had been admitted on October 3, 2007. With regard to the events leading up to the hospitalization, Plaintiff stated that after leaving her abusive common-law husband and five children in Canada in April 2007, Plaintiff was deported to the United States because he "pulled her sponsorship." T.253. The common-law husband allegedly stabbed her in the leg and "put a nail through her head" and had been sexually abusing her for years.
On October 4, 2007, at the request of Dr. Rajendran, Dr. Hee K. Choi examined Plaintiff, who denied any history of cancer or diabetes. She admitted smoking 2 packs of cigarettes a day but denied using alcohol, crack cocaine, marijuana, or heroin. T.256. She noted that her father died of colon cancer and her mother is alive but has diabetes. T.257. Dr. Choi's physical examination of Plaintiff was within normal limits.
Plaintiff was discharged on October 11, 2007. Dr. Rajendran indicates that during the course of her hospitalization, she was given chemotherapy, supportive therapy, and milieu therapy. T.253. However, it is unclear what the chemotherapy was for; Dr. Rajendran simply indicates a "history of gallbladder cancer" in his note. T.256. Upon discharge, Dr. Rajendran's Axis I diagnoses were the same as upon admission; his Axis IV diagnosis was "mild" with a GAF of 55. Plaintiff was prescribed Lexapro, Ativan, and Seroquel. She was discharged to Community Mission for sexual assault counseling and mental health services. T.254.
On May 12, 2008, Plaintiff returned to see Dr. Rajendran "with the chief complaints of `I need medication.'" T.243. She denied any alcohol or drug problems. She said she was feeling depressed, anxious, and needing to "check things over and over again."
Plaintiff returned to see Dr. Rajendran on June 30, 2008, stating she was unable to work because she continually has flashbacks about the 2007 rape. She said that she was "content with her progress and staying with her fiancé, helping him out." T.245. Her medications were continued, and Trazodone was added to help her insomnia.
On July 28, 2008, Plaintiff and her fiancé saw Dr. Rajendran. However, the fiancé left the appointment because he was "in a bad mood." T.246. Dr. Rajendran noted that there was "[n]o immediate dangerness [sic] . . . but patient seems to be under [a] lot of distress."
Plaintiff began counseling at Hamburg Counseling Service, Inc. on March 17, 2009. T.259. She complained of not sleeping, being afraid to leave the house, not driving, hyper-vigilance, and being fearful of her ex-boyfriend and the man who raped her. T.260. She had increased anxiety, and was obsessively "cleaning, checking."
Plaintiff attended additional appointments at Hamburg Counseling on April 15, 2009; April 22, 2009; and April 28, 2009.
On May 13, 2009, consultative physician Kathleen Kelley, M.D. examined Plaintiff at the request of the administration.
State disability medical consultant W. Skranovski completed a Mental Residual Functional Capacity Assessment on May 29, 2009.
Plaintiff missed three appointments at Hamburg Counseling on May 21, 2009; June 9, 2009; and June 15, 2009. On June 16, 2009, she was notified that she was in danger of being discharged from the medical clinic if she did not reschedule. T.331-32. On June 18, 2009, her social worker noted that Plaintiff was having "many health problems" which caused her attendance at counseling to be "erratic". T.336. There are no further records from Hamburg Counseling in the record.
Plaintiff was admitted on an out-patient basis to the Community Concern-Mental Health Clinic on December 23, 2009, for treatment of symptoms of PTSD and depression. Axis I diagnoses were PTSD and major depressive disorder, recurrent, mild. T.423.
Dr. Gupta and Social Worker Valerie Nowak completed a psychiatric evaluation of Plaintiff on April 27, 2010, noting that she recently had been admitted to Lake Shore Hospital because of panic attacks. T.425. Plaintiff was pleasant with a mildly anxious and depressed mood; fair memory and concentration; at least average cognition; fair insight and judgment; and no evidence of thought disorder. Axis I diagnoses were bipolar disorder, mixed, in remission; PTSD, by history. T.426. Axis II diagnoses were Cluster B traits.
Plaintiff was discharged from Community Concern on June 24, 2010, because she "consistently missed appts that were scheduled — no reason given." T.421. However, she returned to Community Concern on October 12, 2010. T.431. She had been referred by Mercy Hospital where she had been hospitalized for 5 days with double pneumonia. She was prescribed Celexa and diazepam in the hospital but was told she was bipolar and may need "something more." T.431. Plaintiff recounted an extensive history of abuse and trauma (being molested by an adoptive step-brother; being abused for 20 years by her ex-boyfriend; being raped; having to leave her children in Canada when she escaped from her abusive ex-boyfriend). This causes nightmares, jumpiness, and flashbacks. She reported she is depressed, "barely" sleeps, has panic attacks daily, and is irritable more often than not. Plaintiff scored 69 on the Zung Anxiety Scale, which placed her in the "Severe to Extreme" range; she scored 75 on the Zung Depression Scale, in the "Severe to Extreme" range. T.431. Axis I diagnoses were PTSD and major depressive disorder, recurrent moderate. The treatment plan included individual therapy using cognitive and supportive techniques. Plaintiff was scheduled to see her psychiatrist, Dr. Gupta. T.432.
Title 42 U.S.C., § 405(g) authorizes district courts "to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." This Court's function is not to determine
This Court must independently determine if the Commissioner applied the correct legal standards in determining that the claimant is not disabled.
To establish disability under the Act, a claimant bears the burden of demonstrating (1) that she has been unable to engage in substantial gainful activity by reason of a physical or mental impairment that has lasted or could have been expected to last for a continuous period of at least twelve months, and (2) that the existence of such impairment has been demonstrated by evidence supported by medically acceptable clinical and laboratory techniques. 42 U.S.C. § 1382c(a)(3);
To determine disability, the Commissioner uses a five-step sequential evaluation process. 20 C.F.R. § 416.920;
The ALJ applied the five-step sequential evaluation and, at step one, found that Plaintiff had not engaged in substantial gainful activity since the application date. At step two, he found that Plaintiff has the following severe impairments: obsessive/compulsive disorder ("OCD"), PTSD, bipolar disorder, depression, carpal tunnel syndrome, hypoglycemia, and obesity. The ALJ found the impairments were not severe enough to meet or medically equal any listed impairments. T.20. Specifically, Plaintiff's mental impairments, considered singly and in combination, do not meet or medically equal the criteria of Listings 12.04 (Affective Disorders) and 12.06 (Anxiety Disorders). T.20-21. Looking at the "Paragraph B" criteria, the ALJ assessed that in activities of daily living, Plaintiff has mild restriction; in social functioning, Plaintiff has moderate difficulties; with regard to concentration, persistence or pace, Plaintiff has moderate difficulties; and Plaintiff has experienced one to two episodes of decompensation, each of extended duration. T.21. Because Plaintiff's mental impairments do not cause at least two "marked" limitations or one "marked" limitation and "repeated" episodes of decompensation, each of extended duration, the "Paragraph B" criteria are not satisfied.
With regard to Plaintiff's residual functional capacity ("RFC"), the ALJ found that she can occasionally lift/carry 20 pounds and frequently lift/carry 10 pounds; can stand and/or walk for six hours in an eight-hour workday; can sit for six hours in an eight-hour workday; can occasionally perform fine manipulations; should avoid concentrated exposure to dust, fumes, gases, poor ventilation and other respiratory irritants due to her history of asthma; and can perform the basic mental demands of unskilled work, including the ability to understand, remember, and carry out simple instructions in a low stress, low contact work environment. T.22. The ALJ found that Plaintiff was a younger individual with a high school education and no past relevant work. Considering these factors and her RFC, there were jobs that exist in significant numbers in the national economy that Plaintiff can perform. The ALJ determined that a finding of "not disabled" was appropriate because Plaintiff's additional limitations would have little effect on the job base for light, unskilled work. T.28.
Plaintiff argues that the ALJ failed to develop the record by not requesting an RFC assessment from her treating psychiatrist.
It is well-settled in the Second Circuit that the ALJ must affirmatively develop the administrative record, given "the essentially non-adversarial nature of a benefits proceeding."
Here, there is no indication that the ALJ ever contacted any of the mental health care providers who have treated Plaintiff over the years. Although Plaintiff underwent a consultative physical examination, she was not asked to attended an examination by a consultative psychologist. Thus, no psychiatrist, psychologist, social worker, or counselor examined Plaintiff and gave an opinion regarding the functional limitations caused by her multiple and long-standing mental impairments. The only mental RFC assessment in the record was completed by a non-examining state disability medical consultant.
The ALJ apparently justified his refusal to contact Plaintiff's mental healthcare providers or to request a consultative psychological exam on the basis that he found Plaintiff's mental health treatment to be "spotty" and "inconsistent". The Court has found no support in the caselaw or the regulations for the proposition that a claimant's noncompliance with treatment excuses an ALJ's regulatory duty to assemble a complete record. Indeed, before relying on noncompliance with treatment to discredit a claimant's testimony about the severity of her impairments, the law requires the ALJ to consider whether there was a justifiable reason for the claimant to discontinue the indicated treatment.
The record indicates that Plaintiff's combined mental health impairments are long-standing and have, on at least one occasion, required inpatient psychiatric care. Because the record contains no assessment from an examining provider, much less a treating source, quantifying Plaintiff's mental limitations, the Court finds that the record was not sufficiently complete for the ALJ to render an accurate RFC.
The ALJ's failure to contact Dr. Gupta in an attempt to obtain an RFC or medical source statement constitutes a breach of his duty to develop the record, and provides a basis for remand.
Plaintiff argues that the ALJ's RFC, restricting Plaintiff to unskilled work in a "low stress, low contact" environment, did not adequately take into account the functional limitations caused by her various severe mental impairments on her ability to deal with everyday stressors. The Court agrees.
"Because stress is `highly individualized,' mentally impaired individuals `may have difficulty meeting the requirements of even so-called `low-stress' jobs,' and the Commissioner must therefore make specific findings about the nature of a claimant's stress, the circumstances that trigger it, and how those factors affect his ability to work."
On remand, the ALJ will address statements by Dr. Gupta (or the acceptable medical source who completes the mental RFC assessment) concerning Plaintiff's difficulties handling stress, and consider how those difficulties affect her ability to work. The ALJ also will consider whether, in light of Plaintiff's nonexertional impairments, a vocational expert should be called to testify.
Because the errors identified above constitute independently sufficient grounds for remanding this case, the Court need not address Plaintiff's remaining contentions.
For the foregoing reasons, Defendant's motion for judgment on the pleadings is denied, and Plaintiff's motion for judgment on the pleadings is granted to the extent that the Commissioner's decision is reversed, and the matter is remanded for further administrative proceedings consistent with this Decision and Order.
