Zabala v. Astrue

Decision Date11 February 2010
Docket NumberDocket No. 08-0928-cv.
Citation595 F.3d 402
PartiesGloria ZABALA, Petitioner-Appellant, v. Michael J. ASTRUE, in his official capacity as Commissioner of Social Security, Respondent-Appellee.
CourtU.S. Court of Appeals — Second Circuit

Cara Campbell, Julie Gendel (Jon Romberg, on the brief), Seton Hall University School of Law Center for Social Justice, Newark, NJ, for Appellant.

John E. Gura, Jr., Assistant United States Attorney (David S. Jones, Assistant United States Attorney, on the brief), New York, NY, for Lev L. Dassin, Acting United States Attorney for the Southern District of New York, for Appellee.

Before: LEVAL, POOLER, and PARKER, Circuit Judges.

LEVAL, Circuit Judge:

Petitioner Gloria Zabala appeals from an order of the United States District Court for the Southern District of New York (William H. Pauley III, J.) rejecting her petition to set aside the decision of the Commissioner of Social Security denying her claim for Supplemental Security Income ("SSI") based on disability. We affirm.

BACKGROUND

Petitioner worked as a self-employed jewelry salesperson for six or seven years until 1992. She also worked as a "marathon assistant" from October to December 1997. Beginning in April 1998, she sought treatment at the emergency room of St. Barnabas Hospital, complaining of sleeplessness, hearing voices, and nervousness. The psychiatrist who examined Petitioner reported that she was fully oriented and had an appropriate affect, but was anxious. He also reported that her insight and judgment were fair, and that no psychotic symptoms were elicited. The diagnosis was adjustment/anxiety disorder. Petitioner was referred to Fordham-Tremont Community Mental Health Center ("FTMH").

Dr. Maria Sandos of FTMH treated Petitioner from June 1998 to January 1999. At her initial examination, Sandos observed that Petitioner was fully oriented, alert, positive, and adequately groomed. Her memory, impulse control, insight, and social judgment were fair. Sandos noted that Petitioner was preoccupied with her son's arrest, and that she complained of hallucinatory voices. Sandos's diagnosis was "major depression, moderate, dysthimia." Sandos also concluded that Petitioner's Global Assessment of Functioning ("GAF") was 65.1 After attending therapy sessions through 1998, Petitioner reported that she felt "somewhat better" with medication, although her anxiety and depression persisted.

In September 1998, Petitioner was examined by a consulting physician, who determined that Petitioner had no physical difficulties or limitations, although she appeared anxious. In December 1998, she was examined by a consulting psychiatrist, who determined that her mood was depressed, but her judgment was fair, she possessed emotional insight, and she had no psychotic symptoms or suicidal or homicidal ideation. He diagnosed Petitioner with "[m]ajor depression, recurrent, moderate in intensity, without psychotic features." He opined that she could manage her own funds and had a fair to limited ability to understand, carry out, and remember instructions in a work setting. Also in December 1998, a state agency physician produced a report based on Petitioner's medical record. The state physician indicated that she could lift weights up to fifty pounds and could sit, stand, or walk for periods of six hours. The state physician noted that she had deficiencies in concentration and one or two episodes of decompensation (i.e., temporary increases in symptoms) in a work-like setting. He therefore opined that Petitioner had moderate limitations in activities of daily living and social functioning, marked limitations in her ability to understand, remember, and carry out complex instructions, but no limitations in understanding, remembering, and carrying out simple instructions or making simple work-related decisions.

After a session in January 1999, at which Sandos observed that her mood was less depressed and that she had no complaints of anxiety, Petitioner did not appear for her next seven scheduled appointments and FTMH closed her case file in April 1999. She returned to FTMH at the end of May 1999, and was examined by a different psychiatrist, who diagnosed her with "major depression, recurrent, moderate, without psychotic features." Petitioner had one more session, in June 1999, at which she reported feeling better on medication, and then did not return to FTMH for approximately one year.

Petitioner's return to treatment began with an emergency room visit in May 2000, where she complained of headaches and dizziness. A psychiatric consultation resulted in a diagnosis of "depressive disorder NOS [not otherwise specified]." She went to FTMH in June 2000 and was examined by Dr. Albert Scublinsky, who continued to treat her through 2002. At her intake, Dr. Scublinsky diagnosed Petitioner with major depression with psychotic features and general anxiety disorder and determined her GAF to be 45.2 Eight days later, on June 20, 2000, Scublinsky saw her again and raised his assessment of her GAF to 55.3 After two more sessions at FTMH within the next month, Petitioner reported that she had no delusions or hallucinations, and that the medicine she was prescribed had no side effects.

In October, November, and December 2000, Petitioner reported that she was "stressed out" from having taken custody of her daughter's children, but she appeared psychiatrically stable and indicated that her medication was helpful. In two sessions with Scublinsky, in mid-December 2000 and mid-January 2001, Petitioner reported that she suffered from sleeplessness and hearing voices. Otherwise, from February 2001 through July 2001, she appeared psychologically stable and did not complain of hearing voices.

In July 2001, at the request of Petitioner's counsel, Dr. Scublinsky completed a questionnaire and reported a diagnosis of "major depressive [disorder], severe, recurrent, [with] psychotic [features]." He further reported that her GAF was 55. He noted that her primary symptoms were depression, anxiety, and auditory hallucinations, but that she also suffered from poor memory, feelings of worthlessness, social withdrawal, and decreased energy. In a section of the questionnaire regarding Petitioner's ability to perform work-related functions, Scublinsky wrote "unable to assess."

In June 2002, Petitioner was examined by Dr. Azariah Eshkenazi in connection with her claim for benefits. Eshkenazi diagnosed a disthymic disorder and indicated that her GAF was 60. Eshkenazi also opined that she was, "at present, ... unable to be gainfully employed." Also in June 2002, Dr. Scublinsky prepared another questionnaire, reporting the same diagnosis and GAF as he did in the July 2001 questionnaire, and again indicating that he was unable to assess Petitioner's ability to work.

Petitioner's pursuit of SSI benefits began when she filed an application on September 10, 1998. After her application was denied, she appeared with an attorney before Administrative Law Judge ("ALJ") Robin J. Arzt in September 1999, for a review of the determination. The ALJ issued an opinion finding that Petitioner was not disabled. The Social Security Appeals Council, however, reversed and remanded. During the second hearing before ALJ Artzt, in July 2003, Petitioner stated that she worked as a babysitter for "a few months" in 2001, which involved taking four children to school, picking them up, and watching them for two to three hours per day. The ALJ questioned this description of the duration of her babysitting work in light of Social Security Administration ("SSA") records indicating that she had earned $9,605 in wages in 2001. After an off-the-record discussion, Petitioner's attorney stated that the period under review would be the "closed period" from January 1, 1998 to January 3, 2001, after which, counsel acknowledged, she was "engaging in SGA [substantial gainful activity]."

In her second opinion, the ALJ again found that Petitioner was not disabled. The ALJ stated that the period under review was the closed period from August 18, 1998, the claimed onset date of her condition, to January 3, 2001, noting that Petitioner and her attorney amended the period after examining her SSA earnings records for 2001 and 2002. The ALJ then reviewed the evidence using the five-step evaluation guidelines found in 20 C.F.R. § 416.920.

At step one, the ALJ found that Petitioner had not engaged in substantial gainful activity from August 18, 1998 to January 3, 2001. At step two, the ALJ determined that her mental condition was a "severe impairment." At step three, the ALJ decided that Petitioner's condition, while severe, was not a disability per se under 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ found, for the period at issue, no evidence that she was limited in her ability to maintain social functioning or attend to the activities of daily living, that she was only moderately limited in her ability to maintain concentration, and that she had not displayed repeated episodes of decompensation.

At step four, the ALJ reviewed the evidence to determine whether Petitioner was disabled during the relevant period. The ALJ noted that Petitioner's first evaluations at FTMH in June 1998 indicated that she had only mild symptoms with a GAF of 65, and that by January 1999, her condition had improved with treatment. The ALJ also found that Petitioner had significant gaps in treatment in 1999 and 2000, but when she was evaluated, she was determined to be stable on medication. The ALJ described the main findings of Scublinsky's July 2001 questionnaire, noting that he diagnosed major depression with a GAF of 55, but could not assess her ability to work. However, the ALJ discounted the June 2002 evaluation by Eshkenazi and the June 2002 questionnaire by Scublinsky. The ALJ found Eshkenazi's conclusion that Petitioner was "unable to be gainfully employed" unjustified by his...

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    ..., 454 F.3d 1063 (9 th Cir. July 26, 2006), 9 th -06 Wiley v. Apfel , 171 F.3d 1190 (8 th Cir. Mar. 30, 1999), 8 th -99 Zabala v. Astrue , 595 F.3d 402 (2d Cir. Feb. 11, 2010), 2d-10 § 107.13 Inability to Perform the Full Range of Work and its Impact on the Application of the Grids Chester v......
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    ...(N.D. Ill. 2010), § 1107.19 Yuckert v. Bowen , 482 U.S. 137, 146 N.5, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987), § 103.1 Zabala v. Astrue , 595 F.3d 402 (2d Cir. Feb. 11, 2010), 2d-10, 7th-10 Zaldivar v. Apfel , 81 F. Supp.2d 1353 (N.D. Ga. Jan. 25, 2000), §§ 504.2, 509.3, 604.11, 604.13 Zalews......
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    • 4 Mayo 2015
    ...(N.D. Ill. 2010), § 1107.19 Yuckert v. Bowen , 482 U.S. 137, 146 N.5, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987), § 103.1 Zabala v. Astrue , 595 F.3d 402 (2d Cir. Feb. 11, 2010), 2d-10, 7th-10 Zaldivar v. Apfel , 81 F. Supp.2d 1353 (N.D. Ga. Jan. 25, 2000), §§ 504.2, 509.3, 604.11, 604.13 Zalews......
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    • James Publishing Practical Law Books Bohr's Social Security Issues Annotated - Volume I
    • 4 Mayo 2015
    ..., 454 F.3d 1063 (9th Cir. July 26, 2006), 9th-06 Wiley v. Apfel , 171 F.3d 1190 (8th Cir. Mar. 30, 1999), 8th-99 Zabala v. Astrue , 595 F.3d 402 (2d Cir. Feb. 11, 2010), 2d-10 § 107.13. Inability to Perform the Full Range of Work and its Impact on the Application of the Grids Chester v. Cal......

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