Donnelly v. Colvin

• Decision Date: 13 March 2015
• Docket Number: 13-CV-07244 (AJN) (RLE)
• Parties: STACY DONNELLY, Plaintiff, v. CAROLYN W. COLVIN, as Acting Commissioner of the United States Social Security Administration, Defendant.
• Court: U.S. District Court — Southern District of New York

STACY DONNELLY, Plaintiff, v. CAROLYN W. COLVIN, as Acting Commissioner of

the United States Social Security Administration, Defendant.

13-CV-07244 (AJN) (RLE)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

March 13, 2015

REPORT AND RECOMMENDATION

To the HONORABLE ALISON J. NATHAN, United States District Judge:

I. INTRODUCTION

Plaintiff Stacy Donnelly ("Donnelly") commenced this action under the Social Security Act ("Act"), 42 U.S.C. 405(g), challenging the final decision of the Commissioner of Social Security ("Commissioner") denying her claim for disability benefits. On June 20, 2014, Donnelly filed a motion for judgment on the pleadings (Pl's Mem. Law Supp. Pl's Mot. Judgment Pleadings ("Pl. Mot.") at 7) seeking the reversal of the Commissioner's final decision and remand solely for the calculation of benefits, or alternatively, to remand the case for reconsideration of the evidence. (Pl. Mot. at 7.) Donnelly argues that the record supports the conclusion that she is disabled and does not have the residual functional capacity to work. (Pl. Mot. at 7-8.) The Commissioner filed a cross-motion for judgment on the pleadings on October 1, 2014, (Defs Mem. Law Supp. Comm'r's Cross-Mot. Judgment Pleading ("Def. Mot.") at 2), and on October 17, 2014, Donnelly filed a reply. (Reply Mem. Law Further Supp. Pl's Mot. Judgment Pleadings and Opp'n Def. Cross-Mot. Pleadings ("Pl. Reply") at 2.) For the reasons that follow, I recommend thatDonnelly's motion be GRANTED IN PART, and that the case be REMANDED for further administrative proceedings.

II. BACKGROUND

A. Procedural History

Donnelly applied for disability insurance and Supplemental Security Income benefits, on August 26, 2009. (Pl. Mot. at 7.) Her applications were denied on November 3, 2009 (Id. at 7.) On November 6, 2009, Donnelly filed a request for a hearing that was ultimately held before Administrative Law Judge ("ALJ") Gitel Reich on September 2, 2010. (Tr. of Administrative Proceeding ("Tr.") at 142.) The ALJ denied Donnelly's application for Social Security Disability benefits on November 12, 2010, finding that Donnelly was not disabled under the Act. (Tr. at 103.) Donnelly requested review by the Appeals Council on November 22, 2010. (Id. at 165.) On May 25, 2012, the Appeals Council granted review and remanded the case. (Id. at 119.) Specifically, the Appeals Council asked the ALJ to evaluate Donnelly's mental impairments, give further consideration to her residual functional capacity and, if warranted, consult a vocational expert to provide examples of jobs she can perform. (Tr. at 9.)

On September 13, 2012, Donnelly reappeared before ALJ Reich. (Id. at 9.) ALJ Reich denied Donnelly's applications for Social Security Disability benefits on October 25, 2012, finding that Donnelly was not disabled under the Act. (Id. at 6.) Donnelly sought review by the Appeals Council, but her request was denied. (Id. at 1.) The ALJ's decision became the Commissioner's final decision. Donnelly filed this action on November 8, 2012. (Id. at 4.)

B. ALJ Hearing I

1. Donnelly's Testimony

Donnelly was born on June 20, 1981. (Pl. Mot. at 8.) She is the mother of an autistic boy. (Id.) After graduating from high school, Donnelly worked as a retail sales assistant for six years and as a makeup artist for four years. (Tr. at 238.) In 2008, she was diagnosed with papillary thyroid cancer. (Tr. at 13.) She had the right lobe of her thyroid removed on July 16, 2008. (Id. at 14.) The cancer, however, had spread to her left lobe, and it was removed on August 19, 2008. (Id.) After her thyroidectomy, Donnelly received radiation therapy. (Pl. Mot. at 8.) She had a full body radioactive scan in November 2008 and again in November 2009. (Tr. at 14.) Both scans showed no further metastases¹. (Id.) Nonetheless, after the surgeries and treatments, Donnelly complained of fatigue, palpitations upon exertion, lightheadedness, weight lost, and swelling of the hands and feet. (Tr. at 111.) Her illness began to significantly interfere with her ability to work such that she had to stop completely by July 16, 2008. (Tr. at 237; Pl. Mot. at 8.) Donnelly receives annual radiation therapy and takes daily medications which causes bleeding of the mouth and dry skin. (Pl. Mot. at 8.)

Aside from thyroid cancer, Donnelly also suffers from major depression and moderate, recurrent post-traumatic stress disorder for which she attends weekly psychotherapy and monthly psychiatric sessions. (Pl. Mot. at 9.) She takes Seroquel for depression but it causes fatigue. (Id.) Additionally, Donnelly suffers from frequent migraines for which she takes Inderal daily. (Tr. at 37.) Inderal shortens the duration of her headaches but causes fatigue. (Pl. Mot. at 9.)

Donnelly is the sole caretaker of her autistic son, who was three and a half years old at the time of the hearing. Her only means of income was welfare and her son's SSI. (Tr. at 3; Pl. Mot. at 8.)

2. Vocational Expert's Testimony

No vocational expert testified at this hearing. ALJ Reich stated that she relied on the Medical-Vocational Guidelines in her evaluation of the medical record. (Tr. at 114.) Along with the Medical-Vocational Guideline, the ALJ also considered Donnelly's residual functional capacity, age, education, and work experience. (Id. at 113.) The ALJ concluded that Donnelly's "additional limitations have little or no effect on the occupational base of unskilled sedentary work."(Id. at 114.) Most importantly, ALJ Reich found Donnelly's "residual functional capacity for sedentary work [was] not significantly compromised by her mental limitations...or hazardous environment restriction." (Id.)

3. Medical Evidence

a. St. Luke's- Roosevelt Hospital

Donnelly began outpatient weekly psychotherapy at St Luke's-Roosevelt Hospital Women's Health Program in May 2009. (Tr. at 36.) She was diagnosed with posttraumatic stress disorder and major depressive disorder. (Tr. at 428.)

(1) Elizabeth Katcher, M.A

Donnelly's primary therapist, Elizabeth Katcher, a psychology extern, completed a Medical Impairment Form on November 1, 2010. (Tr. at 514-15.) Katcher found that Donnelly had "unlimited" and "very good ability" to follow work rules and could "function independently." (Id. at 516.) She noted, however, that Donnelly "demonstrated a limitedcapacity to deal with stress in her life since being diagnosed with thyroid cancer" and that her illness "had significantly affected her ability to concentrate and pay attention." (Id.)

Katcher determined that Donnelly's ability to deal with work stress and maintain attention and concentration was markedly impaired. (Tr. at 516.) She maintained that Donnelly was markedly impaired in her ability to behave in an emotionally stable manner and relate predictably in social situations, observing that she "is often tearful and depressed, and has some difficulty regulating her affect. Her emotions appear to be somewhat volatile, ranging from depressed and tearful to irritable and frustrated to anxious and worried." (Tr. at 517.)

Donnelly complained to Katcher she had little energy and had difficulty completing her daily and necessary tasks. (Tr. at 518.) She also informed Katcher that she had problems sleeping and remaining alert throughout the day. (Id.)

(2) Dr. Collette Haward

Dr. Collette Haward completed a Medical Impairment Form for Donnelly on August 31, 2012. (Tr. 610-13.) Although Dr. Haward noted that Donnelly was able to manage her affairs in her own best interest, follow work rules, relate to co-workers, use judgment, interact with supervisor, and function independently, she found that Donnelly's ability to deal with work stresses was markedly impaired. (Tr. at 611-13.) She also found that Donnelly's ability to "demonstrate reliability" was "markedly impaired." (Id.)

(3) Carole Srinivasan, Ph.D.

In a September 19, 2011 therapy session with Carole Srinivasan, Ph.D., Donnelly scored a fifty-four on the Beck Depression Inventory,² which is in the range of severe depression. (Tr.at 600.) Prior to this visit, Donnelly experienced significant heart palpitations which prompted her doctors to lower the dosage of her depression medication. (Id.) Donnelly reported that her depression worsened following the change in her medication. (Id.) She felt more anxious, slept less (two hours each night) and had no appetite. (Id.) She had suicidal thoughts and actions and on one occasion even went as far as taking out the pills she would use, but pictures and thoughts of her son stopped her from going through with the suicide. (Id.)

In her exploration of Donnelly's medical and mental health history, Dr. Srinivasan found that Donnelly had a history of neglect and psychological disorders. (Tr. at 600.) Donnelly's mother was diagnosed with schizophrenia and her fraternal twin sister was diagnosed with autism and was living in an adult assisted living facility. (Tr. at 599-600.)

On September 6, 2012, Dr. Srinivasan completed a Medical Impairment Form. (Tr. at 614-17.) She found Donnelly's ability to deal with work stresses and demonstrate reliability markedly impaired, but determined that Donnelly could manage benefits in her own best interest. (Id.)

b. New York Presbyterian Hospital

Donnelly has a history of throat issues. She had frequent sore throats and throat infections. (Tr. at 329.) She also had trouble breathing and her voice changed because of the size of her tonsils. (Id.) When these problems did not go away, she had an ultrasound of her right thyroid on March 26, 2008. (Tr. at 326.) A follow-up ultrasound on May 7, 2008, found that the right thyroid node had increased in size since the prior scan. (Tr. at 358.) On July 16, 2008, a right thyroid biopsy revealed that Donnelly had Papillary Carcinoma, Nuclear Grade II. (Tr. at 323.) After the removal of her right node, subsequent scans showed that the cancer had spread to the left thyroid, (Tr. at 321.), and it was removed on August 19, 2008. (Id.)

The thyroidectomy was followed by...