Ball v. Astrue

• Decision Date: 02 December 2010
• Docket Number: No. 09–CV–40.,09–CV–40.
• Citation: 755 F.Supp.2d 452
• Court: U.S. District Court — Western District of New York
• Parties: Lucinda Marie BALL, Plaintiff,v.Michael J. ASTRUE, Commissioner of Social Security, Defendant.

755 F.Supp.2d 452

Lucinda Marie BALL, Plaintiff,

v.Michael J. ASTRUE, Commissioner of Social Security, Defendant.

No. 09–CV–40.

United States District Court, W.D. New York.

Dec. 2, 2010.

Felice A. Brodsky, Lockport, NY, for Plaintiff.Kevin D. Robinson, U.S. Attorney's Office, Buffalo, NY, for Defendant.

ORDER

RICHARD J. ARCARA, District Judge.

This case was referred to Magistrate Judge Leslie G. Foschio, pursuant to 28 U.S.C. § 636(b)(1), on May 8, 2009. On October 2, 2009, defendant filed a motion for judgment on the pleadings. On July 28, 2010, Magistrate Judge Foschio filed a Report and Recommendation, recommending that defendant's motion should be denied and the matter remanded for a rehearing.

Defendant filed objections to the Report and Recommendation on August 6, 2010 and the plaintiff filed a response thereto.

Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review of the Report and Recommendation, and after reviewing the submissions, the Court adopts the proposed findings of the Report and Recommendation.

Accordingly, for the reasons set forth in Magistrate Judge Foschio's Report and Recommendation, defendant's motion for judgment on the pleadings is denied and the case is remanded to the Commissioner for a rehearing pursuant to sentence four of 42 U.S.C. § 405(g). The Clerk of Court shall take all steps necessary to close the case.

SO ORDERED.

REPORT and RECOMMENDATION

LESLIE G. FOSCHIO, United States Magistrate Judge.

JURISDICTION

This action was referred to the undersigned by Honorable Richard J. Arcara on May 8, 2009. The matter is presently before the court on Defendant's motion for judgment on the pleadings filed on October 2, 2009. (Doc. No. 7).

BACKGROUND

Plaintiff, Lucinda M. Ball (“Plaintiff”), seeks review of Defendant's decision denying her Social Security Disability Insurance (“SSDI”), and Supplemental Security Income (“SSI”) (together, “disability benefits”) under, respectively, Titles II and XVI of the Social Security Act (“the Act”). In denying Plaintiff's application for disability benefits, Defendant determined Plaintiff had not engaged in substantial gainful activity since December 6, 2005, that Plaintiff had the severe impairments of depressive disorder/ dysthymic disorder, and asthma, but that Plaintiff did not have an impairment or combination of impairments that meets or medically equals one of the listed impairments under 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. § 416.920(d), 416.925 and 416.926). (R. 13) ¹. Defendant also determined that although Plaintiff had the residual functional capacity to perform work at all exertional levels, Plaintiff had the residual functional capacity to perform the representative occupations of plastic molding machine tender, and packaging machine tender, within twelve months of the alleged onset date. (R. 20). As such, Plaintiff was found not disabled, as defined in the Act, at any time from the alleged onset date through the date of the Administrative Law Judge's decision. Id.

PROCEDURAL HISTORY

Plaintiff filed an application for disability benefits on December 6, 2005 (R. 63); that was initially denied by Defendant on May 15, 2006. (R. 53–56). Pursuant to Plaintiff's request, filed June 1, 2006 (R. 66), a hearing was held before Administrative Law Judge Lamar Davis (“the ALJ”) on April 29, 2008, in Buffalo, New York. (R. 253–70). The Plaintiff, represented by Felice M. Brodsky, Esq. (“Ms. Brodsky”), appeared and testified at the hearing. Testimony was also given by vocational expert Jay Steinbrenner (“the VE”). (R. 263–69). The ALJ's decision denying the claim was rendered on June 25, 2008. (R. 11–21).

On July 16, 2006, Plaintiff requested review of the ALJ's decision by the Appeals Council (R. 7), which became Defendant's final decision when the Appeal's Council denied Plaintiff's request for review on November 13, 2008. (R. 2–4). This action followed on January 12, 2009, with Plaintiff alleging the ALJ's decision that, as of November 30, 2005, Plaintiff was not disabled, was not based on substantial evidence in the record. (Doc. No. 1).

Following the filing of Defendant's answer on May 5, 2009, including the record of the administrative proceedings (Doc. No. 4), on October 2, 2009, Defendant filed the instant motion for judgment on the pleadings (“Defendant's motion”), together with a memorandum of law (Doc. No. 8) (“Defendant's Memorandum”). Oral argument was deemed unnecessary.

Based on the following, Defendant's motion should be DENIED and the matter remanded for a rehearing consistent with Section 1 F of this Report and Recommendation.

FACTS ²

Plaintiff, was born April 2, 1963, has a general education diploma, and lives with her two minor children. (R. 63, 254). Plaintiff, has previously worked as a jewelry salesperson from June 1991 to December 1991, a data entry clerk from November 2001 to June 2002, and an assembly line worker from May 1999 to March 2001. (R. 85). Plaintiff alleges she is disabled because she suffers from asthma, generalized anxiety disorder, depression, and alcoholism. (Doc. 1).

On May 12, 2005, Plaintiff was arrested for endangering the welfare of her children (R. 164–65), and entered alcohol abuse treatment from May 19, 2005, until the date of the application for disability benefits on December 6, 2005. Plaintiff received psychotherapeutic treatment counseling from Niagara County Mental Health (“NCMH”) from July 27, 2005, until November 17, 2005 (R. 233–38), and denies any use of alcohol from May 19, 2005, until the date of hearing on April 29, 2008. (R. 254).

On December 1, 2005, relevant to her disability benefits application, Plaintiff received treatment counseling at Niagara County Mental Health (“NCMH”) from Licensed Clinical Social Worker Robert J. Kupolinski ³ (“Therapist Kupolinski”), who noted Plaintiff slept three to four hours each night, that Plaintiff's negative thoughts had decreased, assessed Plaintiff with a Global Assessment of Functioning (“GAF”) ⁴ score of 55, and diagnosed Plaintiff with depression. (R. 231–32). On December 14, 2005, Plaintiff received psychotherapy treatment from Therapist Kupolinski, who noted Plaintiff was having difficulty changing her negative thoughts, and assessed Plaintiff with a GAF score of 55. (R. 230). Therapist Koysilinski treated Plaintiff on December 28, 2005, noting Plaintiff's negative thoughts were decreasing, and assessing Plaintiff with a GAF score of 57. (R. 229).

On January 5, 2006, P. Hoffarth, M.D. (“Dr. Haffarth”) conducted a medical report for disability determination, and evaluated Plaintiff with depression and “normal” physical bodily systems. (R. 119). On January 25, 2006, Plaintiff's treatment was transferred to Deborah A. Noble, LCSW (Licensed Clinical Social Worker) (“Therapist Noble”), who noted Plaintiff was “depressed,” “tearful throughout [the therapy] session,” and that Plaintiff reported she was “not sleeping most nights.” (R. 227). Therapist Noble assessed Plaintiff with a GAF score of 57. Id. On February 23, 2006, Therapist Noble evaluated Plaintiff with a GAF score of 55, noted Plaintiff complained of being “up all night, most nights” and a “depressed mood most days.” (R. 225). On March 13, 2006, Prabhakar R. Gumbula, M.D. (“Dr. Gumbula”), Plaintiff's consulting psychiatrist, evaluated Plaintiff with goal oriented thought processes, no recent episodes of feeling overwhelmed, noted Plaintiff's affect as “somewhat constricted and anxious,” changed Plaintiff's anti-depressive medication from Remeron to Lexapro, and also prescribed Ambien (a sleep aid). (R. 215). Correspondence to Niagara County Family Treatment Court on April 4, 2006, from Northpointe Council, Inc. (formerly Alcoholism Council of Niagara County) (“Northpointe”), reflected Northpointe was concerned about Plaintiff's depression. (R. 213). On April 7, 2006, Therapist Noble noted Plaintiff reported improved sleep (four to six hours of sleep each night), and assessed Plaintiff with a GAF score of 57. (R. 212). On April 17, 2006, Christine Holland, M.D. (“Dr. Holland”) conducted an internal medical examination on Plaintiff, and noted Plaintiff reported she cooked four to five times each week, did laundry once a week, shopped once a month, and took care of her children on a daily basis. (R. 205). Dr. Holland noted Plaintiff “looked tired,” and otherwise experienced no physical limitations. (R. 206).

A psychiatric evaluation of Plaintiff on April 17, 2006, by Renee Baskin, Phd., (“Dr. Baskin”), showed Plaintiff's “[d]epressive symptomology ... remarkable for dysphoric moods, fatigue/loss of energy, crying spells, feelings of hopelessness, irritability and social withdrawal ... [Plaintiff's] [a]nxiety related symptomology ... remarkable for restlessness, and muscle tension ... [and Plaintiff's] cognitive symptomology ... remarkable for short-term memory deficits and concentration difficulties.” (R. 208). Dr. Baskin opined Plaintiff was able to follow and understand simple instructions and perform simple tasks independently, but may have difficulty making appropriate decisions, relating to others, and appropriately dealing with stress. (R. 210). Dr. Baskin diagnosed Plaintiff with depressive order NOS (not otherwise specified), and alcohol abuse in remission, and noted Plaintiff's results were consistent with psychiatric and substance abuse problems, which “may significantly interfere with [Plaintiff's] ability to function on a daily basis.” Id.

On May 8, 2006, Dr. Gumbula evaluated Plaintiff and noted Plaintiff reported she was depressed and that the current medication was not helping her. (R. 139). Dr. Gumbula changed Plaintiff's anti-depressive to Wellbutrin and noted Plaintiff was “anxious.” Id.

On May 12, 2006, Hillary Tzetzo, M.D. (“Dr. Tzetzo”), conducted a mental residual functional capacity assessment on Plaintif...