Hernandez v. Astrue

• Decision Date: 29 April 2011
• Docket Number: No. 10–CV–0234 (KAM).,10–CV–0234 (KAM).
• Parties: Shawna Patrice HERNANDEZ, Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Eastern District of New York

165 Soc.Sec.Rep.Serv. 170

814 F.Supp.2d 168

Shawna Patrice HERNANDEZ, Plaintiff,

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

No. 10–CV–0234 (KAM).

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

April 29, 2011.

Christopher James Bowes, Office of Christopher James Bowes, Shoreham, NY, for Plaintiff.

Karen T. Callahan, United States Attorneys Office Eastern District of New York, Brooklyn, NY, Social Security Administration–Generic, for Defendant.

MEMORANDUM & ORDER

MATSUMOTO, District Judge:

Pursuant to 42 U.S.C. section 405(g), plaintiff Shawna Hernandez (“plaintiff”) appeals the final decision of defendant Commissioner of Social Security Michael Astrue (“defendant” or the “Commissioner”), who denied plaintiff's application for Supplemental Security Income (“SSI”) and Social Security Disability (“SSD”) under Title XVI of the Social Security Act (the “Act”).¹ Proceeding pro se,² plaintiff contends that she is entitled to receive SSI and SSD benefits due to severe medically determinable impairments, including “depression, anxiety, panic disorder and anemia,” which she alleges render her disabled and have prevented her from performing any work since December 8, 2006. ( see generally Compl.) Presently before the court is defendant's unopposed ³ motion for judgment on the pleadings, filed on October 27, 2010. ( See ECF No. 17, Defendant's Motion for Judgment on the Pleadings (“Def. Mot.”) dated 10/27/2010.) For the reasons set forth below, defendant's motion is denied and the case is remanded for further proceedings consistent with this opinion.

BACKGROUND

I. Plaintiff's Personal and Employment History

Plaintiff was born on August 2, 1974 in New York City. (Tr. 21, 75, 93.) ⁴ Plaintiff graduated high school and subsequently received special job training as a bartender in 1992. ( Id. at 109, 110.) From 1992 through 2002, plaintiff worked as a waitress and bartender at Hooter's restaurant in Staten Island, New York for seven hours a day, four days per week. ( Id. at 96–98, 106, 186.) In this role, plaintiff took orders, talked to customers, cleaned tables, brought trays of food, prepared checks, and retrieved supplies. ( Id. at 106.)

Plaintiff moved to California in August 2002. ( Id. at 186.) While living in California, plaintiff heavily abused alcohol and reported drinking two forty ounce beers during the day and one to two pints of vodka at night. ( Id. at 27, 167.) Also while in California, plaintiff's two older children were taken from her by court order.⁵ ( Id. at 27.)

From March to December 2006, plaintiff was self-employed as a manicurist, hair stylist, and babysitter. ( Id. at 96, 98.) As a manicurist, plaintiff “did manicures, ... applied nail tips, and polished nails.” ( Id. at 98.) As a babysitter, plaintiff fed, played with, and read to children. ( Id.) In 2006, plaintiff reported that she stopped working after becoming abusive to one of her clients. ( Id. at 26.) Plaintiff further reported that at the time she stopped working, she would “just get physical” if she had to interact with people. ( Id.) According to plaintiff, she stopping working because “her symptoms got too bad, she was in an abusive relationship and her husband” abandoned her in California. ( Id. at 105.)

Plaintiff moved back to Staten Island, New York from California around December 2006. ( Id. at 96, 156.) Plaintiff stopped drinking between February 2007 and March 13, 2007. ( Id. at 28, 29, 129, 167, 179, 186.) At the time she filed for disability benefits on June 7, 2007, plaintiff was seven months pregnant and living with her sister, cousin, nephews, and eight-year-old daughter in Staten Island, New York. ( Id. at 119.) Plaintiff gave birth to her fourth child in or around September 2007. ( Id. at 129.)

On January 12, 2009, plaintiff testified before the ALJ that, at that time, she was living in her sister's home with two of her children, ages one and ten. ( Id. at 21.) Plaintiff further reported that her sister would help feed, bathe, and clothe plaintiff's one-year-old child. ( Id. at 22.) Plaintiff also reported spending most days in bed unless she needed to go to a doctor's appointment. ( Id. at 22, 28.) Plaintiff testified that she did not think she could perform simple repetitive work at that time. ( Id. at 28.)

II. Plaintiff's Medical HistoryA. March 1 and March 6, 2007: St. George Hospital Visits

On March 1, 2007, plaintiff was admitted to the Behavior Health Service Division at Richmond University Hospital, Staten Island, New York. ( Id. at 155.) From there, plaintiff was referred to the St. George Mental Illness Chemical Addiction Program (“St. George”). ( Id. at 155–56.)

According to a March 6, 2007 assessment ⁶ prepared by social worker Domenica Fratto (“Ms. Fratto”) and reviewed by physician Dr. Leonid Izrayelit (“Dr. Izrayelit”), plaintiff had been referred for treatment of anxiety, depression, and alcohol use. ( Id. at 155–56.) During plaintiff's March 6, 2007 assessment by Ms. Fratto, who became plaintiff's primary therapist, plaintiff reported heavy alcohol abuse during the past four years, when she would frequently drink herself to sleep. ( Id. at 156.) Plaintiff stated that she had stopped drinking eight days prior to the assessment upon learning that she was three months pregnant. ( Id.)

Using the DSM–IV multiaxial scale,⁷ Ms. Fratto, as reviewed by Dr. Izrayelit, diagnosed plaintiff with depressive disorder not otherwise specified (“NOS”) and alcohol abuse on Axis I; no diagnosis on Axis II; three months pregnant on Axis III; family/primary support, social relationships on Axis IV; and a GAF of 51 on Axis V. ( Id. at 160.) Ms. Fratto prescribed plaintiff weekly individual psychotherapy and group therapy sessions. ( Id.) After plaintiff's initial intake, however, plaintiff did not return for further treatment at St. George, failed to return for treatment, and failed to respond to patient outreach services. ( Id. at 164.) Accordingly, on March 28, 2007, St. George closed plaintiff's case. ( Id.)

B. April 30 through May 7, 2007: Lenox Hill Hospital Visits

Plaintiff next received treatment at Lenox Hill Hospital (“Lenox Hill”) in New York, New York between April 30 and May 7, 2007. ( Id. 140–46.) Plaintiff was four to six months pregnant at the time. ( Id. at 143.) Upon taking a Patient Health Questionnaire–9 self-assessment test ⁸ (“PHQ–9 test”) administered by Social Worker Erika Richman on April 30, 2007, plaintiff received a PHQ–9 Score of 23, which, according to the PHQ–9 scoring guide, indicates that plaintiff was “severe[ly] depress[ed].” ( Id. at 143–44.) In a follow-up medical examination at Lenox Hill on May 7, 2007, hospital physician Dr. Clyde Weissbart (“Dr. Weissbart”) diagnosed plaintiff with depression and anxiety. ( Id. at 145.) According to Dr. Weissbart, plaintiff was not suicidal and had no hallucinations at the time; however, plaintiff felt depressed, was having panic attacks, was not sleeping well, and was becoming easily enraged. ( Id.) Dr. Weissbart also noted that plaintiff had reported being depressed for the last five years. ( Id.) Plaintiff was not receiving any psychiatric treatment at the time. ( Id.) The record does not indicate that plaintiff received further treatment from Lenox Hill after May 7, 2007.

C. June 14 and June 28, 2007: Readmission and Treatment at St. George

On June 14, 2007, plaintiff was re-admitted to St. George. ( Id. at 166.) Upon readmission, plaintiff reported that her failure to return for treatment in March 2007 had been due to her lack of proper insurance coverage, which she had since obtained. ( Id.) Plaintiff was seven months pregnant at this time. ( Id.) On June 14, 2007, licensed social worker Wendy Wullbrandt (“Ms. Wullbrandt”) assessed plaintiff's chief medical complaints, history of present illness, alcohol abuse history, past treatment, medical history, mental status, and psychosocial status.⁹ ( Id. at 165–74.) Using the DSM–IV multiaxial scale, Ms. Wullbrandt diagnosed plaintiff with bipolar disorder NOS and alcohol abuse on Axis I, rule out (“R/O”) ¹⁰ personality disorder, alcohol dependence, and post traumatic stress disorder; no diagnosis on Axis II; anemia, seven months pregnant, and high cholesterol on Axis III; family/primary support, social relationships, housing, economic, access to health care, medical issues, fixed/limited income, money conflicts with sister, and Medical Health/Social Security Administration issues on Axis IV; and a GAF of 53 on Axis V. ( Id. at 170.) These symptoms matched reported symptoms from the March 6, 2007 assessment at St. George. ( Id. at 166.) Ms. Wullbrandt recommended for plaintiff readmission to the St. George program, medication assessment, and weekly individual and group psychotherapy sessions. ( Id. at 171, 174.)

On June 28, 2007, Ms. Fratto and Dr. Naeem Akhtar (“Dr. Akhtar”) again assessed plaintiff. ( Id. at 176–82.) The June 28, 2007 assessment was prepared with input from Dr. Idowu, the outpatient director, and again reviewed by Dr. Izrayelit. ( Id. at 176, 178.) In plaintiff's June 28, 2007 St. George medical report, Ms. Fratto and Dr. Akhtar noted that “the patient ha[d] many traits of borderline and antisocial personality disorder and was present [ing] with different psychological symptoms at different stress [levels and] at different times.” ¹¹ ( Id. at 178.) In consultation with Dr. Idowu, and as reviewed by Dr. Izrayelit, Ms. Fratto and Dr. Akhtar diagnosed plaintiff with bipolar disorder NOS and alcohol abuse on Axis I; no diagnosis on Axis II or Axis III; family/primary support, social/relationships on Axis IV; and a GAF score of 55 on Axis V. ( Id. at 177–78, 181.) Ms. Fratto and Dr. Akhtar further noted that plaintiff had been receiving medication and attending weekly group and individual psychotherapy sessions for two weeks, since June 2007. ( Id. at 178.)

D. July 3, 2007: Consultative Examination by Dr. Jung Lee Hahn

Following plaintiff's June 2007...