Rodriguez v. Commissioner of Social Security

Case Information

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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MARIBEL RODRIGUEZ,

Plaintiff,

REPORT & RECOMMENDATION against-

MICHAEL J. ASTRUE, 11 C i v. 7720 (CM) (MHD) Commissioner of Social Security,

Defendant.

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TO THE HONORABLE COLLEEN MCMAHON, U.S.D.J.:

Plaintiff Maribel Rodriguez filed this action pursuant to section 1631 (c) (3) of the Soc Securi ty Act ("the Act "), as amended, 42 U. S . C. § 1383 (c) (3) . Compl. , 1). She challenges the May 13, 2011 decision of Administrative Law Judge ("ALJ") Seth I . Grossman, denying her April 30, 2009 application for Supplemental Security Income ("SSI"). (Admin. R. Tr. ("Tr.") at 18 28, 67). ALJ Grossman's decision became the final decision of the Commissioner of Social Security ("the Commissioner") on August 31, 2011, when the Soci Securi ty Administrat ion ("SSA" ) Appeals Council denied plaintiff's request for review. (Tr. at 1 3). Plaintiff seeks an order reviewing the Commissioner's determination and granting her monthly maximum SSI benefits retroactively to the date of her claimed initial disability, March I, 2002. (Compl. " 5, 9(c». Alternatively, she requests an order remanding her claim for recons of the evidence. id. ~ 9(c)).

The Commissioner has moved judgment on the pleadings pursuant to Rule 12(c) of the Rules of Civil Procedure. (Mem. of Law Supp. of the Commissioner1s Mot. for J. on the Pleadings ("Def.' s Mot. /I) 1). He asserts that his of SSI benefits was supported by substant evidence and based upon the applicable legal standards. ) . reasons set forth , we recommend defendant's

For motion judgment on the pI be denied, and the case be remanded further opment of the record additional findings.

On April 30, 2009, a iff filed an application for SSI under tIe XVI of the Act. (Tr. at 67, 157-60). SSA denied her appl ion on initial on June 26, 2009, concluding that plaintiff was "not di edit under the Act. (Tr. at 68-72).

Subsequently, on 2009, plaintiff requested a an ALJ. Tr. at 18, 77 78) On on application hearing be s 29, 2010, pIa iff requested that so that she could appear in person before an ALJ, rather than Vla teleconference. (Tr. at 103). The hearing took place before ALJ Grossman on November 1S, 2010, with plaintiff represent by counsel, Daniel Berger, Esq., and with a vocational expertt Raymond Cester, present. (Tr. at 33-66). Ms. Rodriguez testified with the interpreter. (Tr. at 33) . assistance of a Spani

On May 13, 2011, ALJ Grossman issued a decision unfavorable to plaintiff. (Tr. at 18 28). Though he found that plaintiff had severe impairments - specifically, a "non-union of the right leg with derangement" and "a depress disorder with anxiety" (Tr. at 20) he determined that plaintiff had the residual functional capacity to perform "sedentary work t " provided that she "only per simple t repetit tasks that involve limited contact with the publ and with supervisors." (Tr. at 22) . In light of plaintiff t sage, education t work experience, and residual functional capaci ,ALJ Grossman determined that "jobs .

exist in significant numbers in the national economy that" plaintif f could perform. (Tr. at 27) Therefore, he concluded, plaintiff had not been under a disability as defined by the Act, and was not entit to any benefits under the Act. (Tr. at 28) .

On May 31, 2011, aintiff filed a request for review of ALJ ~.: ... -

Grossman's decis with SSA Appeals Council. (Tr. at 11). SSA Appeals Council denied request for ew on August 21, 2011. (Tr . at 1 3).

On October 28, 2011, plaintiff filed this lawsuit sting review of SSA's denial of benefits. (Compl. ~ 1). pI iff alleges

the ALJ's ision is erroneous because it is nei supported by substant evidence on the record nor in accordance with law. ~ 9). The Commissioner responded on April 9, 2012 by moving for judgment on the pleadings under e 12 (c) , asserting that the ALJ's decision lS supported by substantial evidence. (Def.' s Mem. I, 14-25).

FACTUAL BACKGROUND

1.

The record before the ALJ reflects an extensive story treatment for plaintiff's medical and psychiat c conditions. Specifically, it shows in the period between 2002 and 2011, ^[1] We note that the administrative transcript contains repeats of cert pages. After page 503, pages the record revert to number 484, after which pages in continue in proper order.

Ms. Rodriguez was treated principally right-lower-extremity derangement, depression, and anxiety.

A. Plaintiff/s Medical Contacts

The City of New York Human Resources Administration ("HRAII) issued plaintiff a letter on an unspecified date prior to September 10 ^[1] 2002 noting that she was "too ill to participate in an HRA Approved Work acti vityll and subsequently scheduled a medical examination for at HS Systems ^[1] Inc. in order to help determine an appropriate work activity. (Tr. at 216)

On September 24 / 2002 ^[1] Ms. Rodriguez visited HS Systems l Inc' l where was examined by Dr. Peter E. Graham. (Tr. at 205) Plaintiff described to Dr. Graham that she had experienced a questionnaire at this visit in Spanish. (See Tr. at 210-12). She indicated on that form that she had emotional problems such as depression or anxietYI that affected her ability to work. (Tr. at 211). She also indicated that she participated in activities of normal daily living, including washing clothes and dishes making l the bed l cooking watching television and socializing. (Tr. at l l 212) . ~ ..............................

\\ ture of the tibia ^{[3] [4]} [and] fibula 16 years ." (Id.).

indicated she had undergone "a number es" for the examination, plaintiff problem. At the time in" in the lower of her right 1 which was described "some induced by (Id.). Addit lly, the doctor noted that she claimed to from "poor we bearing" and "swelling" in the same leg, al she did not use a cane to aid ambulation. (Id.) She reported t she was on no medication. (Id.).

Dr. recounted that aintiff had red an episode phlebitis to her although she was not hospi tal i zed. ( I d. ). The doctor observed Ms. Rodriguez "walk [edJ wi a slight limp due to slight ening of the lower ext ty," and he not about a one cent ter difference the length her legs. (Tr. at 206). PIa iff's right leg so exhibited "anterior bowing the mid-tibi area." (Id.). An x ray of the tibia and fibula revealed "residue of previous ^[3] A tibia is "the shin bone: the inner and larger bone the leg below the kneei it articulates with femur and head of the fibula above and with the talus below."

Medical Dictionary, 1840 (29th ed. 2000)

4 "A bone of the leg." Dan J. Tennenhouse, Medical Deskbook § 5;8 (4th ed. 2006-2011), available at Westlaw MEDDESK. Phlebitis is the" lammation a vein." Dorland's,

supra note 3, at 1374. fracture." (rd.).

During Dr. Graham's uation, plaintiff described a "history anxiety and depression sorder," which included" lings of 'I and "episodes of inappropriate crying." (Tr. at 205). iff indicated, however, she had never attempted suicide.

. Plaintiff also reported she did "not recall when she [had] last worked." (rd.)

timately, the doctor concluded that Ms. Rodriguez1s prognosis was "stable." (Tr. at 206) . He observed that she was able to "sit stand, walk, lift, carry, handle objects hear, speak and l l travel,lI though any "prolonged wal may be limited by (rd.). The doctor cros leg pa out an indication that she was II able to do "sedentary to light activity" -- what he wrote its place in illegible. (rd.). Dr. Graham ordered an x-ray of distal right and laboratory tests. (Tr. at 213). On this date l plaintiff also agreed to be a part of HHS Medical Examination Program. (Tr. at 218-19) .

The ts plaintiff's laboratory work were available the next day. (Tr. at 208). The pertinent reflects that she had low glucose and "BUN,,,6 and high LDH cholesterol, a high white blood cell count, and "hematocrit. ,,8 (Id.).

On September 26, 2002, Dr. Seymour Sprayregen HS Systems, Inc. provided his interpretation of the radiographic examination of the distal portion of the plaintiff's right leg, including ankle. (Tr. at 209). The doctor observed "a healed fracture of the midtibial t with anterior bowing at the fracture site" and "areas of selerosis in the proximal tibia and dist tibia whi [he] considered to related to traction pins." (Id.) He observed further that "[t]here [was] a healed fracture of the distal fibula and a fracture of the midfibula at the tibial fracture level wi no good bony union at s site." (Id.). Ultimately, his impression of the plaintiff's leg was that "[r]esidua of previous fractures of the t and fibula" were present. (Id.).

On September 27, 2002, Dr. Graham wrote to the HRA and indicated that plaintiff was to follow up with her primary care Dr. Maruthi M. Sunkara at HS Systems Wellness Program not that pIa iff had fractured her leg 1986. (Tr. at 222, 228 29). He ermined that plaintiff was capable of doing

erical work, " such as "answering phones" and "making 9 A liver-function test. Tennenhouse, supra note 4, § 5:14. Lab reports generated on October 2, 2002 reflected high cholesterol and LDL levels. (Tr. at 223)

[11] plan was ultimately completed on December 18, 2002. (Tr. at 203, 225 228 (rehabilitation plan treatment notes)).

12Hematology is ined as the "branch of medical science that deals with the blood and blood-forming tissues." Dorland's, supra note 3, at 796.

appointments/II as of January 8/ 2003. (Tr. at 222/ 228 29). He noted that Ms. Rodriguez could not Ustand or walk for prolonged periods. II (rd.). He also noted that she was not currently on any medications and that had high cholesterol and an elevated white blood cell count. (Id.). A blood test taken on January 23/ 2003 reflect a high white blood cell count (12.2 k/ul). (Tr. at 224).

At the close plaintiff's Rehabilitation Program, HS Systems concluded that high cholesterol and LFT count had ureached maximim medi improvement,1I and she was cleared to "participate in a work related activi (Tr . at 221, 230 ) On February 6, /I 2003, HS Systems published a specific report of its findings regarding plaintiff's ability to work. (Tr. at 220, 231). It found that she could perform a job that involved "[n] ^[1] ifting and minimal walking/bending/standing, pushing, [] pulling [and] [o]perating [m]achinery." (Tr. at 220). She was also ructed to avoid travel during rush hour. . The report reflects a list of HRA jobs that were " table" for pla iff, luding answering phones, making appointments, making and collating copies, sewing costumes, interpreting, greeting sitors/ data entry, and simple bookkeeping. . On February 21, 2003 HS Systems sent plaintiff a notice plan complet informing her that her treating in a work related physician had cleared r to partic activity. (Tr. at 230).

On March 18, 2003, the HRA provided notice to plaintiff that was required to have a medical ional assessment evaluation in order to assess ability to work. (Tr. at 242). Her appointment was scheduled for April 2, 2003.

On April 2, 2003, Dr. Graham again examined Ms. Rodriguez. (Tr. at 233, 243).13 He noted that pla iff demonstrat "slight anterior bowing with slight shortening of the right lower extremity." (Tr. at 234). However, he found that 1 of her joints and her spine exhibited a 1 range of motion without pain, and that was able to perform a 1 squat. (rd.). He not that prior to the examination, Ms. Rodriguez had had a "[h]istory of recurrent phlebitis in the right lower extremity," but she did not show evidence of post phlebit syndrome. (Tr. at 235). He determined while "prolonged standing or prolonged walking may be limited by pain in the right lower extremity," her prognosis was "stable" and was "able to do sedentary work./t (rd.). abnormally high white blood cell count. (Tr. at 236 (April 3, 2003 report)) .

On April 7, 2003, HS Systems again issued a report regarding plaintiff's medical condition. (Tr. at 241). The report indicates that she continued to have an abnormal white blood cell count, and recommended that she follow up with a primary care provider within On that same date, HS Systems al so issued a a week. recommendation regarding her functional work capaci ty. (Tr. at 232). The report indicates that could perform work that involved no lifting and minimal walking, bending, standing, pushing, and pulling, but that she should avoid rush hour travel. (Id.). The report again listed a number of HRA jobs that would be suitable pIa iff, such as answering phones, interpreting, keeping simple records, and making and collating copies. (rd.)

On November 30, 2004, Dr. Elliot Wein examined an MRI Ms. Rodriguez's right tibia and fibula. (Tr. at 271, 274, 322, 375). He observed "[olld healed fractures of the mid shafts of the [right] tibia and fibula, [and] an old fracture or dislocation." (Id.). Most pertinently, noted nonunion of the fracture at the mid-shaft of fibula. (Id.). The doctor also did not observe radiographic evidence of osteomyelitis." ^[5] (Id.).

On June 14, 2005, plaintiff visi Dr. Albert Panozzo the division of ambulatory care at Montefiore Medical Center ("Montefiore"), claiming that she had experienced increasing for the prior three to four months her right leg "over the midsha of the tibia," and that she wanted to have "something done" to improve position of the malunited fracture. (Tr. at

270 71). Dr. Panozzo noted that this complaint was "inconsistent with the radiological picture," and he therefore "plan [ned] to investigate it further with a CT scan and a full M HS Systems also issued a report re ecting some of these limi tations on April 2, 2003. (Tr. at 244) "A bone infection, often chronic and difficult to treat,

sometimes seen following compound fractures and open reductions./f Tennenhouse, supra note 4, § 12:5.

blood count, ESR, and CRP." (rd.). He planned to see again after he received the resul ts of the testing. (rd.)

On August 30, 2005 Dr. Nnawmezie G. Umeasor ordered a uranalysis of pI iff. (Tr. at 261). The results of that test do not indicate whether any findings were abnormal.

The record then ref ts an approximate nineteen month gap in treatment following the August 2005 visit. ^[17]

In the period between March 30, 2007 and April 10, 2007, a Federation Employment and Guidance Service ( "F . E . G . S . " ) ^[18] Biopsychosocial Summary was prepared for Ms. Rodriguez on behalf of appointment, plaintiff report receiving cash and rent assistance, and food stamps, and that she had applied for Medicaid. (Tr. at 246 47). She also reported living with two of her six children in a three-bedroom apartment. (Tr. at 247, 251). She described her housing situation as "stable." (Tr. at 247). Plaintiff also indicated that she had completed high school in Puerto Rico prior to relocating to the United States, and that she is able to read and write well in Spani (Tr. at 249).

The F. E. G. S. report notes that plaintiff's ex-husband had physically, sexually, and emotionally abused her approximately fifteen years prior. (Tr. at 250). In the wake of that abuse,

aintiff had received domestic-violence counseling. (Id. ) . Plaintiff also reported no history of substance abuse. (Tr. at 251). With respect to her depressive symptoms, the summary noted that she was "feeling depressed" due to "economical" problems but was not suicidal. (Id.). She reported ing "down, depressed, or hopeless" and having difficulty sleeping "[n]early [e]veryday [sic]." (Id.). She reported feeling tired or having little energy more than half the time. (Id.). Ms. Rodriguez also stated that she was "feeling bad about ff herself and that she had let herself and her ly down "several daysff at a time. (Tr. at 252). Based on these symptoms, Ms. Rodriguez stated that problems made it "[s]omewhat [d]ifficult ff for her to perform her work, take care things at home, and get along with other people. (Id.). The F.E.G.B. social worker offered plaintiff ment health services, and she declined.

With respect to her abili to travel, plaintiff noted that she cannot travel independently because of her "leg problem,ff and that "she f[a]lls down when she walks.ff (Tr. at 252-53). As as her daily living activities, plaintiff reported that she was able to cook, clean, watch television, read, get dressed, socialize, and groom herself. (Tr. at 253). Bhe was unable to sweep or mop the floor, and to vacuum. also reported needing assistance with grocery shopping due to right leg pa

As for her work history, plaintiff reported she was last employed as a receptionist 2005, and that she was "interested in clerical work.ff (Tr. at 249). The F.E.G.B. summary noted that Ms. Rodriguez claimed that she could not work at the time because she was suffering from right leg pain, back pain, and right leg swelling. (Tr. at 254). However, plaintiff indicated interest in learning English and computer lIs. (Id.). The report notes that plaintiff was taking "pa meds / " but does not specify whi ones. (Id.). A physical examinat revealed no abnormal f except

pain and deformity in the right leg. (Tr. at 254, 256 57). Plaintiff provided medi documentation, and disclosed that the leg pain stemmed from a non-union fracture resulting from a 1985 car accident. (Tr. at 254, 257).

Plaintiff also underwent a pain assessment on 30, 2007. She described leg pain at a 4 out of 10i however, she indicated that the pa varied from a (no pa to a 6. (Tr. at 257). She indicated that a 4 was an "[a]ccept e" pain level. (Id.). That same day, plaintiff underwent mul t Ie laboratory tests, which reveal that she had high t des she measured 246 mg/dL when the normal range was cated at 40-150 mg/dL and an elevated white blood I count (13.2 k/ul) and Mev.20 (Tr. at 262 - 66) .

Ult the F. E. G. S. summary concluded that plaintiff suffered from "[m]oderate" depress and that her medi provider should "follow up" on her right leg pain, back pain, heart W "Mean corpuscular volume [is a] laboratory test." Tennenhouse, supra note 4, § 5:15.

condition, Ie shoulder pain, and swelling in her right leg. (Tr. at 252, 254). The final diagnoses the summary indicated suffered from that Ms. Rodriguez -leg paln and hyperl ipidemia. ^[2] (Tr. at 259-60) In light of plaintiff's limitations, was determined that she could only be employed in a position that red limited walking, st ng, pulling, and climbing in that she could perform "sedentary work" without any "stren[u]ous activities." ^[22]

A second F.E.G.S. was prepared to reflect treatment for the time period between September 23, 2008 and November 4, 2008. (Tr. at 273, 275-82, 328 48). Plaintiff mentioned she had worked in December 2007 as a child-care provider. (Tr. at 334). In pertinent part, the noted that Ms. Rodriguez from "suicidal ideation thoughts" and had planned "to drink 15 depression pills." (Tr. at 336) As of that date, she that her last suicidal thought had occurred around the end of July 2008. (Id.). Plaintiff also reported feeling down, depressed, and hopeless, and that she had had trouble concentrating for " [s]everal [d]ays." (Id.). Moreover, on September 23, 2009, plaintiff had scored an eight on the PHQ_9 ^[23] depression scale (Tr. at 337), prompting Karen Perez -- a F.E.G.S. social worker to conclude that plaintiff suffered from mild depression. (Tr. at 336-37).

Ms. Perez reported that plaintiff had stated that she was unable to travel independently due to dizziness and problems with her right leg. (Tr. at 337). Similarly, Ms. Rodriguez claimed that she fell often. (Id.). Plaintiff noted that she did not workj she stayed home to care for her two fifteen-year-old daughters, and did not report limitations in performing activities of daily living. (Id.). With respect to her current ailments, plaintiff reported a broken right leg, heart problem, and migraines. (Tr. at 339). The report indicates that she was "ON MEDS" as of September 23, 2008, but it does not specify which medications. (Tr. at 341) . A medical examination on that same date revealed pain in plaintiff's right leg, a bony elevation and mild tenderness at the mid-tibial region, and depression. (Tr. at 342, 344). Lab test results from samples collected on September 23, 2009 indicated a high white blood cell and triglyceride count. (Tr. at 267-69, 342, 350-54).

The 2008 F.E.G.S. report also noted that Ms. Rodriguez was suffering from pain in her right leg, which she assessed as a 6 on a scale from one to ten. (Tr. at 344). According to notes taken by Dr. Rama Kompella, plaintiff's pain ranged from two to eight on a scale of ten. (Id.). Plaintiff indicated that a level of 0, or no pain, was "acceptable" pain level. (Id.). It was noted that plaintiff could not stand or sit "for some time" due to the pain in her right leg. (Tr. at 348) .

Dr. Kompella diagnosed plaintiff wi th hypertension, migraines, a prior right tibial fracture, and right leg pain. (Id. ). The doctor also concluded that Ms. Rodriguez suffered from "[u]nstable [m]edical and/or [m]ental [h]ealth [c]onditions [t]hat [r]equire[d] [t]reatment" before a functional-capacity determination could be reached. (Id.). She also suggested that plaintiff follow up wi her primary care physician to address the abnormal lab results. (Id. ) .

Plaintiff was referred to a three-month wellness plan at Bronx her right leg pain and tibial fracture. (Tr. at 276, Lebanon 278) . i outcome was "reduction of symptoms wi medication." (Tr. at 277) Plaintiff also indicated that a- primary care doctor, Dr. had ordered a right-leg t fibula exam, ts of which were expected in early October ember 24, 2008, plaintiff was taking 2008. (Tr. at 278). As of Lexapro2~ and Tylenol, and a Lipoderm 5% patch. (Id.)

On September 29, 2008, plaintiff again visited Bronx-Lebanon Hospital Center. (Tr. at 284, 288 (same)). She was referred by Dr. Barakat from the Wellness CI complaints of a depressed mood c and crying spells. (Id.). PIa iff denied suicidal or homicidal ideation, and requested depression. (Id. ) . Dr. Srikanth Reddy determined that iff's mood and affect were "depressed, /f and diagnosed with "[d]epressive disorder not otherwise specified." pre pIa iff two-weeks worth of Lexapro, and advised to low up with "OPD" for continuity of care. (Id.).

On October 1, 2008, plaintiff was a no-show an at ~ Lexapro is a "selective serotonin reuptake tor" to treat "depression, panic disorder, anxiety di obsessive-compulsive disorder, post-traumatic stress disorder, premenstrual dysphoric disorder, [and] social anxiety disorder./f Tennenhouse, supra note 4, § 40:8.

Bronx Lebanon. (Tr. at 595). On October 5, 2008, plaintiff completed a form in Spanish regarding her use of drugs and cohol. (Tr. at 590-91). She denied use of drugs and alcohol, but indicated that she was on unidentified prescription medication. (Tr. at 590) .

On October 8, 2008, Ms. Rodriguez returned to see Dr. Richard J. Adam at Bronx Lebanon. (Tr. at 286). The doctor described a radiology report from that visit as demonstrating that plaintiff had " [c]hronic fracture deformities the tibia and fibula" in the right lower leg, in addition to "anterior angulation of the proximal to mid shaft fractures." The report reflected a number of additional abnormal ies, including "nonunion the midshaft fibula fracture," "an additional healed fracture of the distal fibula shaft," "sclerosis at the tibia fracture with lucency, "25 "cortical thickening the tibia shaft extending superiorly and inferiorly," "lucency . . surrounding sclerosis in the proximal tibia shaft above the fracture I" and "a sclerotic focus bulging into the marrow cavity." (Id.). The doctor noted that the \\[m]ultiple abnormalit s of the tibia" were "very concerning ~ "Material is 'lucent' or 'radiolucent' if it permits x-rays to pass through it, leaving dark areas on the x-ray film." Rosas v. Hertz Corp., 1997 WL 736723, at *1 n.2 (S.D.N.Y. Nov. 24, 1997) (citing Mosby's Medical, Nursing, and Allied Health Dictionary, 1328 (Kenneth N. Anderson et al. eds., 4th ed. 1994) ) .

for osteomyelitis. II (Id.). The doctor suggested an enhanced MRI to (Id. ) . further evaluate plaintiff's condit

Bronx Lebanon's Comprehensive Psychiatric Emergency Programs ("CPEP") then referred plaintiff ongoing outpatient mental health treatment with Bronx Lebanon's Adult Psychiatry Outpat Division. (Tr. at 604) pI iffls first visit was on November 51 2008. (Id.). At that she complained of increased stress l s indi that had come to anxietYI and insomnia. (Id.) New York from Puerto Rico eight years earlier. (Id. ). She had initially I in a shelter but got section 8 housing. (Id.). She also reported she worked though public assistance at an unspecified job soon after she arrived in the states. (Id.).

That same date l Dr. Braham Harneja of Bronx Lebanon completed a Comprehensive Treatment an for plaintiff. (Tr. at 492 99 586 588) .26 pI ntiff I s Axis I diagnosis was Anxiety Disorder. (Tr. at 492). He rated her current prior GAF at 60. (Id.). Plaintiff was not employed at the time l but the doctor noted that she was motivated treatment I and had good soc skills and a stable home. ( I d. ) .

security guard. (Id.).

On December 2, 2008, plaintiff visited wi Dr. Miriam A. Ewaskio, a psychiatrist with the Bronx Lebanon outpatient clinic. (Tr. 601) .29 Plaintiff was worried about being evicted, but reported decreased anxiety and improved sleep with the help of Lexapro (10 reflect an increase plaintiff's "panicl anxiety" and problems sleeping based on from a recent f that had affected two nearby homes. (Id.). As of that date, plaintiff was taking Lexapro and Trazodone. (Id.). PIa iff also informed doctor that welfare had closed her case and had asked her for a letter regarding her current treatment. (Id.).

Dr. Ewaskio and SW Arce completed a Treatment Plan Review on ^[30] Treatment records re ect notes from both Dr. Ewaskio and Dr. Braham Harneja. (Tr. at 411-13).

behalf plaintiff on February 5, 2009. (Tr. at 483-91). Plaintiff's diagnosis was indicated as Anxiety Disorder with mixed emotions. (Tr. at 483). They indicated that plaintiff's current Global Assessment Functioning ("GAF") was 55, and her prior GAF was 60. (Tr. at 483). The report reflects that pIa iff had a stable home and good social skills, and was able to read and write. However, she was unemployed. (Id.).

One goal of treatment was to improve plaintiff's depression, mood, and anxiety. (Tr. at 484). The treating sources hoped to ling of sadness and anxiety for "4/7" days per week. improve her

. To meet that goal, plaintiff was to remain on antidepressant drugs and continue individual therapy. . PI iff also was to improve her general health. (Tr. at 487). To do so, she was to that would follow up to reschedule. Her next appointment at Bronx Lebanon was on March 30, 2009. (Tr. at 413, 562, 606). She reported feeling "sad" and overwhelmed, but felt "good" when she attended church. (Tr. at 606).

On March 31, 2009, plaintiff saw Dr. Ewaskio. (Id.) The doctor noted that plaintiff was off Lexapro and Trazodone. She still complained of trouble sleeping and increased anxiety and depression. (Id.). Dr. Ewaskio restarted plaintiff on Lexapro and Trazodone. (Id.).

On April 20, 2009, plaintiff visited Bronx Lebanon without an appointment to request a letter for "SSD" - presumably Social Security disability insurance. (Id.). On April 21, 2009, plaintiff visited SW Arce at Bronx Lebanon. (Tr. at 561). reported "OK," but complained that was coping with stressors due to a need to relocate to a section 8 apartment.

On April 21, 2009, plaintiff again saw Dr. Ewaskio. (Tr. at 317, 319 (same), 320 (same), 374 (same)). She diagnosed plaintiff sorder, mixed emotions, and as suffering adjustment ssion. (rd.) She described plaintiff as alert, cooperative, but so "anxious" h an "overwhelmed mood."

aintiff was still taking Lexapro and Trazodone. ) . The doctor indicated that plaintiff had a "fair" prognosis, and that "mental health condition [had] impacted her dai activities [she was] not e to work at [at] time."

Ms. Rodriguez again vi with her treating psychiat st, Dr. Ewaskio, on April 29, 2009. (Tr. at 318, 373 (same}). Dr. Ewaskio diagnosed plaintiff with "mixed emot " and "adjustment [disorder]," with an onset e of November 5, 2008. She described pI iff as "anxious, feeling overwhelmed,f1 with a "sad mood." ( rd. ) Plaintiff ained that had a "low erance to stress." The doctor noted that iff was t Lexapro and Trazodone, and her response to those medications was "fair," but that they were "being adj usted. " (rd. ). She also determined that, at the t the examination, plaintiff was "temporarily unemployable."

On May 5, 2009, SW Dr. Ewaskio filled out a Treatment Plan review for pI iff. (Tr. at 474-82). At the time,

diagnosis was "[m]ixed " (Tr. at 474). The report indicates that plaintiff's current GAF was 55, and her prior GAF was 60. (rd.). The report s aintiff as motivated for treatment, with family and soc support, and as capable of

ight. (rd.). The treatment plan's goal was to improve iff's depression, so that she It less depressed and less for "5/7 days per week for t next months. /I (Tr. at 475). To meet that goal, plaintiff was to continue to see SW Maine and Dr. Ewaskio monthly over the subsequent t months. (rd.). A second of treatment was improving pI iff's general health by that she was compliant with cations. (Tr. at 478) As that date, plaintiff did not meet the discharge

(Tr . at 4 81) . On May 29, 2009, plaintiff visited SW Arce at Bronx (Tr. at 414, 608). She reported feeling "ok," and was regularly t r medicat ions. (rd. ). Her mood was st Ie. (rd.). SW Arce fill out a Treatment plan Review of pI iff on that date. (Tr. at 609-17). She was being seen for mixed-symptom anxiety sorder, and remained unemployed. (Tr. at 607) . The an's primary goal was to improve plaintiff's depression, by limiting depression to "4/7 daysH with the help of medication,

ings ety. (Tr. at 610). She was to continue and by limiting her taking antidepressants and attending individual therapy. (Tr. at 610, 613). As of that date, plaintiff was not ready discharge. (Tr . at 616).

On June 8, 2009, plaintiff si ted a physician, Dr. Herb Meadow, at Industrial Medicine Associates, PA, in Bronx, New York

a consultive psychiatric examination, at instruction of the SSA. (Tr. at 290 93). With re to r psychiatric history, pI iff reported that she had no history of psychiatric hospitalization, but that had in counseling about one and a half years, and was presently seeing Dr. Ewaskio at F.E.G.S. once every month. (Tr. at 290). With respect to her medications, she stated that she was taking Fioricet/APAp ^[32] with Codeine, complained that she had "difficulty falling asleep," had "a poor appetite," and had lost ten pounds the year prior to the visit. (Id. ) . The doctor noted she described that symptoms "depression[,] of dysphoric moods, crying spells, irritability, low energy, diminished self-esteem, and difficulty concentrating." (Id.). She had had suicidal thoughts in the past, but not at the time of the visit. (Id.). She denied any panic attacks, manic symptoms, thought disorder, or cognitive deficits. (Id.). Dr. Meadow described her mood as "[d]epressed" and "anxious." (Tr. at 291). Dr. Meadow also noted that Ms. Rodriguez had had a history of "domestic violence" and suffered from related "flashbacks and nightmares." (Tr. at 290)

Dr. Meadow noted that her attention and concentration were intact, as were her recent and remote memory skills. (Tr. at 291) . He considered her cognitive functioning to be "[a] verage," with the " [g] eneral fund of informat ion I imi ted, II and her insight and judgement to be "[f]air." (Tr. at 291 92).

With respect to her daily living activities/ plaintiff reported that she "[took] care of her personal hygiene, [did] I her household chores soci ize[d] primarily with her I immediate family [and] spen[t] her days watching television and listening to music." (Tr. at 292). The doctor concluded that "[t]he claimant would be able to perform all tasks necessary [for] vocational functioning. II (Id.). While he noted that the examination results appeared "to be consistent with psychiatric problems/" he concluded that they did "not appear to be significant enough to interfere wi [plaintiff's] ability to function on a daily basis." (Id. ) .

Nonetheless/ he diagnosed plaintiff as suffering from posttraumatic stress disorder, "[a]djustment disorder with mixed anxiety with depressed mood/" right-leg pain, and hypertension. (Id. ). The doctor recommended that Ms. Rodriguez continue with psychiatric treatment, and gave her a "[f]air l l prognosis. (Id.).

That same day, plaintiff also met with consultative physician Dr. William Lathan, also of Industrial Medicine Associates, PA, for an internal medicine consultation. (Tr. at 294-97). Plaintiff was referred to Dr. Lathan by the Division of Disability Determinations for a disability evaluation. (Tr. at 294) Dr. Lathan initially recorded her medical history with respect to her leg, and noted that she had last worked in 2006 in a child-care position. (Id.). As of that date, plaintiff was taking Acetaminophen with Codeine, Ciprofloxacin, Ibuprofen, Trazodone, Lexapro, Hydroxyzine, Arthrotec, and Tactinal. (Id.). Plaintiff reported that she could "perform all activities of personal care and daily living." (Tr. at 295) .

Dr. Lathan also performed a physical examination of plaintiff on that date. (Id.). His examination revealed a limp favoring the right leg, but he noted that she could "walk on her heels and toes without difficulty" and perform a "full squat." (Id.). She did not require any assistantive devises and was able to climb on and off the examination table without help. (Id.). She had a full range of motion in the hips, knees, and ankles bilaterally, but showed "anterior bowing at the midportioning of the right tibia." (Tr. at 296). However, she suffered from no loss in strength in her lower extremities, nor did the doctor observe swelling in her legs. (Id. )

Dr. Lathan's ultimate impression of Ms. Rodriguez was that she had a history of hypertension, right-lower-extremity derangement, and a history of depression. (rd. ). He gave her a "[s] table" prognosis. (rd.). The doctor further opined that" [t]here is a severe restriction for prolonged standing and walking, II and he recommended a psychiatric consultation. (rd.).

On June 23, 2009, a Dr. B. Lightner ^[37] examined p intiff and subsequently filled out a Physical Residual Functional Capacity Assessment for the SSA. (Tr. at 298-303). Plaintiff was alleging a disability due to a right-leg fracture in 1985 that failed to heal properly. (Tr. at 299). Dr. Lightner reported that an x ray of her right light performed on October 8, 2008 reflected chronic fracture deformities of the tibia and fibula, anterior angulation of the proximal-to-mid-shaft fracture, non-union of the midshaft fibula, and a healed fracture of the distal fibula shaft. (rd.). Dr. Lightner reported that plaintiff's primary diagnosis was a past right-leg fracture with derangement, and a secondary diagnosis of hypertension. (Tr. at 298) .

He made several relevant findings with respect to pla iff's exertional 1 tations. He concluded that plaintiff could occasionally lift and/or carry ten pounds; frequently lift and/or carry less ten poundsi stand and/or walk for a of at least two in an eight hour work daYi sit with normal breaks for a total about six hours in an eight-hour work daYi and push only limited capacity in her lower ext ties. (Tr. and/or pull at 299) .

with respect to postural limitations, Dr. noted that plaintiff could occasionally climb stairs, balance, stoop, kneel, crouch, and crawl. (Tr. at 300) He reported no manipulative limitations, visual limitat communicat limitations, or environmental limitations. (Tr. at 300-01). PIa iff stated that she could not stand or sit "too long" due to pain. However, the doctor reported that she did not explain how symptoms limit her functioning, and thus could not make a statement regarding her 1 itY . (Tr. at 301) .

On June 23, 2009, plaintiff visited Bronx Lebanon to address her ion and anxi (Tr. at 416, 418, 619 20). She , and that she had good and bad days. that she felt depres stated that she was

at times feeling "very anxious," "not doing well n physically. (Tr. at 416) . However, she also stated

she was "feeling good n because her daughters were doing well school. (Tr. at 418).

On June 24 I 2009 , a Dr . M . ible filled out an SSA Psychiatric Review Technique a assessing plaintiff's residual functional capac (Tr. at 304-14). He based his assessment on two pertinent SSA regulations Listing 12.04, 12.06, Anxiety-Related Disorders. Affective Disorders, and st (Tr. at 304) The doctor plaintiff had a medically determinable impairment, consisting of adj ustment disorder with mixed anxiety and a mood. (Tr. at 305). He also found that plaintiff suffered from post traumatic stress disorder. (Tr. at 306). However I Dr. ible determined that plaintiff's impairments would not I t her activities of daily living, would cause only a ld limitation in maintaining soci functioning I and in maintaining concentration l persistence I or pace. (Tr. at 307) . He that she was not significantly I ted in understanding, memory, sustained concentrat I or istence, except wi th re ct to the ability to understand, and carry out de instructions for which had moderate I I concluded that limitations. (Tr. at 311). Dr. Apacible ultimate necessary for Ms. Rodriguez was "able to perform all vocational training" at the time of the examination. (Tr. at 313) .

Plaintiff was seen by Dr. Ewaskio on June 25, 2009. (Tr. at 417, 621). The doctor noted aintiff's complaints of "frequent fearfulness," increased anxiety, difficulty sleeping, and eating when anxious. (rd.). Accordingly, the doctor increased the dosage of plaintiff's Lexapro from 10 mg to 20 mg and the dosage of her Trazodone from 50 mg to 100 mg. (Tr. at 415, 417) .38 She ordered plaintiff to return in four weeks to reassess her condition. (Tr. at 417).

Dr. Ewaskio again saw plaintiff on July 7, 2009. (rd. at 355­ 59). She determined that Ms. Rodriguez was suffering from depression. Plaintiff claimed that she had been feeling anxious, overwhelmed/ and, at times, depressed. (Tr. at 355, 358). She noted that plaintiff was on psychotropic medication, Trazodone/ ^[39] and that she was receiving individual psychotherapy once a month. . Dr. Ewaskio noted that plaintiff's depression had not "resolved or ~ Trazodone is a "serotonin antagonist and reuptake inhibitor" used to treat "major depressive disorder (MDD) " Tennenhouse, supra note 4, § 40:23.

stabilized" since her last visit, and concluded that Ms. Rodriguez was still temporarily unemployable. (Tr. at 357, 359). However, Dr. Ewaskio did not specify for how long she believed that plaintiff would remain unemployable. (rd.).

Plaintiff saw SW Maine on that same date. (Tr. at 624 25) . She indicated that she had been ling anxious" and "found [herself] R crying a lot for no reason at all." (Tr. at 419, 624).

On July 3, 2009, plaintiff had a biopsy of her right cheek. (Tr. at 442-43). Pursuant to a July 6, 2009 report from Dr. Hyun­ Soo Lee at GenPath Laboratory, plaintiff was diagnosed with basal cell carcinoma, a form of skin cancer. (Tr. at 463). On July 17, 2009, the biopsy revealed basal cell carcinoma that extended to the base and lateral edge of plaintiff's cheek. (Tr. at 444, 447, 463). Dr. Lee performed an operation on Ms. Rodriguez on July 23, 2009 to remove the cancer from plaintiff's right cheek. (Tr. at 323 27, 364-66, 376 77, 378, 379, 445 46). doctor observed that "[d]ue to the large defect ft by the excision of the lesion, simple

osure could not be performed. The deeper layers of the def[]ect had to be approximated to reduce tension on and to achieve an optimal healing of the suture line." (Tr. at 327) .

On July 28, 2009, aintiff again visited SW Maine at Bronx Lebanon. (Tr. at 420, 559-60, 625). She indicated that she was experiencing mood instabil i ty. (Id.). She was depressed and anxious because she had been unable to find section 8 housing, and she had recently undergone surgery to remove skin cancer from her face. (Id. ) . and Dr. Ewaskio completed a

On August 5, 2009 SW Ma Treatment Plan Review for aintiff. (Tr. at 465-73). They diagnosed her with ft[mJixed" anxiety disorder. (Tr. at 465). They indicated that she had good social and communication skills, was motivated for treatment, and had a stable home. (Id.). The report identifies goals plaintiff's treatment, the f t of which was to improve her mood and anxiety. (Tr. at 466). Specifically, hope was that plaintiff would feel less anxious and depressed "6/7 days per week for the next 3 months." (Id.). To reach this goal, plaintiff was to continue to see both Dr. Ewaskio and SW Maine once a month for three months. . Plaintiff also had the goal of improving her general health. (Tr. at 469). She was to take all medications as prescribed, and follow up with medical appointments as needed. . The report indicates that plaintiff did not meet

scharge teria at that time. (Tr. at 472) .

On August 6, 2009, plaintiff had a fibroma removed from her right inner thigh. (Tr. at 380, 451-52). She saw Dr. Lee for a post-excision visit, at which she reported that she was "very happy" with the results. (Tr. at 450).

On August 13, 2009, plaintiff was again seen at Bronx Lebanon with a main diagnosis of bipolar disorder with mood instability. (Tr. at 421, 513-14). She indicated that she was very happy to have found section housing and was feeling "less depressed," although she was "still not sleeping." (rd. ) Plaintiff also brought paperwork to that visit from her lawyer in connection with her attempt to obtain ssr benefits. (rd.).

On September 2, 2009, plaintiff again saw Dr. Lee. (Tr. at 453). The purpose of the visit was to reevaluate the scar on her right cheek. (rd.)

On September 8, 2009, Dr. Ewaskio reexamined Ms. Rodriguez. (Tr. at 360-61, 362-63 (same)). The doctor opined that plaintiff was still suffering from depression. (Tr. at 360). Plaintiff reported that her depressive symptoms were persisting, and that she at times became "very anxious" and experienced "heart palpitation." (rd. ) She was still taking both Lexapro and Trazodone, but Dr. Ewaskio noted that medication was "still being adjusted" because her depression had not yet stabilized. (Tr. at 360-61) . Dr. Ewaskio also concluded that Ms. Rodriguez was unable to work for at least twelve months and could be eligible for long-term disability benefits. (Tr. at 361). She also noted that aintiff had already applied for SSl. (Id.).

Plaintiff saw SW Maine that same date to address her mood instability. (Tr. at 515-16). Plaintiff was ing anxious and depressed at the thought having to move to her new apartment. (Tr. at 515). Her next appointment with Ms. Maine was set for October 12,2009. (Tr. at 516).

On October 5, 2009, plaintiff again saw Dr. Ewaskio. (Tr. at 430, 500). She had been out her medications for two weeks and was thus referred as a walk- patient by Ms. Maine. (Id. ) . Plaintiff complained of increased anxiety that had predated her exhausting her supply of both Lexapro and Trazodone. (Id.). She

so reported that she had not been sleeping, but was happy to have found a new apartment for herself and her chil (Id. ) . Plaintiff also showed Dr. Ewaskio the scar from her skin cancer removal procedurei the doctor observed that the scar was mostly At visit, Dr. Ewaskio covered by her glasses. Lexapro prescribed plaintiff .5 mg of Klonopin in addition to and Trazodone that she was already taking. (Id.)

On October 12, 2009, plaintiff was again seen by SW Maine at diagnosis was bipolar disorder with Bronx Lebanon. Her princ mood instability. (Tr. at 422, 517-18). indicated that she was feeling "mildly depres at times" and "anxious." (Tr. 422). She

so indicated that she had moved to a "nice 3 bedroom apartment [and ] kids [were] doing okay," so she should have been "very happy instead of feel depressed." (Id.)

On October 15, 2009, plaintiff again saw Dr. Lee to follow up regarding scar on right cheek. (Tr. at 454). iff complained that area was dry and that there was a "little spot" remaining.

On November 5, 2009 SW Maine and Dr. Ewaskio completed a Treatment Plan Review plaintiff. (Tr. at 394 402, 501-09) They

cated she had mixed anxiety disorder, and her current GAF as 55, with a or rating of 60. (Tr. at 394,501). Plaintiff was not employed at time. (Tr. at 394). report also indicates that pI iff had good soci lIs, a stable home, and was motivated for treatment. . The review indicates that one of the goals of treatment was to improve plaintiff's mood , specifically, that pI iff would report feeling less and sed and anxious for "7/7 days per week for the next 3 months." (Tr. at 395). To meet she was to continue to I see both SW Maine and Dr. Ewaskio on a monthly basis. (rd. ). A second goal identified was to improve plaintiff's general health, e i ly to ensure compliance with medications. (Tr. at 398).

iff was directed to attend medical appointments and take medications as pre (rd.). The treating sources concluded that plaintiff did not meet discharge criteria at time. (Tr. at 401) .

On November 9, 2009, iff had a visit with the Worker, Ms. Maine, at Bronx . (Tr. at 423-24, 425-26 (same) I 519 20 (same), 521 22 (same)). The problems that were at that visit were pIa iff's "[d]epressed [m]ood" and "[a]nxi " (Tr. 423). Ms. Maine rat plaintiff's GAF at 60, and i ified the goals of treatment as eliminating plaintiff's ssed " symptoms," identifying "triggers of depression," and limiting her anxiety to out of seven days each (Tr. at 423-24) . Plaintiff ed feeling "mildly and experiencing anxiety and loss of sleep when faced wi "financial ing of problems." Her mood was "sad, tearful with f frustration." (Tr. at 424) . so reported that she had appli for SSI but had been

She denied l and that she had referred to an SSI lawyer. Plaintiff had brought to the meet paperwork related to her SSI . (Id.). The report indicated applicat she would continue to attend therapy once a month l and would be "cons for discharge to a lower level of care when depress symptoms are in remission." (Id.).

On November 16 ^[1] 2009 I Dr. Ewaskio completed a Psychiatric Assessment of pIa iff in connection with her application soc security disability benefits. (Tr. at 367 68 ^[1] 404-05). Dr. Ewaskio noted that plaintiff was a forty -old Hispanic woman who had been born in Puerto Rico. (Id.). She had been receiving outpatient treatment at Bronx Lebanon hospital since November

had had monthly psychiatric and social worker visits. (Tr. at 367 ^[1] 404). The doctor noted that plaintiffls symptoms

luded depression and anxiety disorder. (Id.). se disorders at times her very stressed and irritable{ and caused her difficulty sleeping. (Id.). The doctor rater her GAF at 50/501 which is superimposed over a rating of 60/60. (Tr. at 368 ^[1] 405). The doctor observed that her attitude l mood l and judgment were "good./I (Tr. at 367, 404). Moreover, not that plaintiff

fered from skin cancer, adjustment disorder with mixed emotions, a broken leg, migraines, and a condition. (Tr. at 368). She reported that plaintiff conti to need treatment for depression and anxiety that had last "many years." (Tr. at 368). The doctor concluded that psychiat treatment "has been the most appropriate course of action to decompensation. II (Tr. at 369). Her prognosis was "[f]air./I

On November 30, 2009, pI iff again saw Dr. Ewaskio. (Tr. at 427, 510, 511). Plaintiff complained of increased anxiety, sadness, and inability to sleep her daughter's husband had diagnosed with cancer. As of that date, she was taking .75 mg of Klonopin daily; the told her that she could double dosage and take up to 1.5 mg total per day. (Id.)

On December 8, 2009, Dr. Ewaskio performed a assessment of pIa iff's abilities to do work-related activities. (Tr. at 369 71, 406-08 (same)). According to Dr. Ewaskio, the cumulative ef her conditions was such that Ms. Rodriguez had demonstrate reliability, and interact with supervisors was "fair." (Id.) .42 She elaborated that plaintiff "has problems concentrating and is not capable of following instructions." (Tr. at 370, 407). Despite the foregoing, Dr. Ewaskio concluded that plaintiff would be able to "manage benefits in her own best interest." (Tr. at 371, 408) .

On that same date, plaintiff had another visit with SW Maine. (Tr. at 428-29). Treatment notes indicate that Ms. Maine continued with the treatment goal of eliminating depressive symptoms and decreasing anxiety. (Tr. at 428) . Ms. Maine observed that plaintiff was anxious and depressed over her "financial situation," and rated her GAF at 60. (Tr. at 429). Plaintiff agreed to continue She also complained of skin and , and of hair loss.

(rd.). Lab specimens that Dr. Lee had collected on January 7, 2010 reflected low "BUN" levels, a high white blood cell count (18.88 k/ul) f and high triglycerides. (Tr. at 381 84, 388 91 (same)).

On January 8/ 2010/ plaintiff again saw SW Maine for depression and anxiety. (Tr. at 431 32, 523-25 (same)). Plaintiff indicated that she was feeling ssed and remained unable to sl despite taking her medicat (Tr. at 431) She reported be anxious because she was planning to help one her daughters move from Louisiana to Puerto co. (rd.). SW Maine noted that pI iff's mood was "sad" and ," and she recommended that plaintiff attend therapy "bi -monthly." (Tr. at 432) . also rated plaintiff's GAF as 60. . Treatment notes also indicate that plaintiff would not be seen in February as she would away helping her daughter movei her next appointment was set March 12, 2010. (rd.).

On January 26, 2010, prior to the Louisiana trip, plaintiff again saw Dr. Lee for persisting dermatol cal issues. (Tr. at 456). She complained of "white spots appearing allover" her body and of a "black spot appearing around" her lip. (Id.).

On January 28, 2010, plaintiff again saw Dr. Ewaskio. (Tr. at 233, 534) She indicated that family had had a difficult

stmas because her daughter's husband had a bag to drain his liver. Plaintiff therefore had experienced a "great" increase of anxiety and sadness, and complained of low energy, lack of motivation, and feelings of sadness. (Id.). She ed that the increased dosage of Lexapro to 20 mg helped "a little." She so reported that she could not sleep, so she would take . She reported that it so helped fta little" but Klonopin. still kept her awake. (Id.) Dr. Ewaskio decided to presc

aintiff Arnbien and Wellbut ,43 and set a follow-up appointment for March 11, 2010 to reassess her response to new drugs. (Id.). Finally, the doctor noted plaintiff was applying for SSI through an attorney who had requested her medical records. Od. ) .

n is a "norepinephrine-dopamine reuptake

inhibitor" to treat "depression, nicotine addict , chronic neuropathic pain (such as pain from ic neuropathy, HIV, Herpes zoster, stroke, multiple s erosis, etc), attention defi hyperactivity disorder, bipolar disorder, [and] sexual dysfunction." Tennenhouse, supra note at § 40.26.

On February 5, 2010, SW Maine and Dr. Ewaskio filled out another Treatment Review for plaintiff with respect to treating mixed anxiety disorder. (Tr. 526-33, 548) .44 Plaintiff was still unemployed as of that date. (Tr. at 548). The first treatment goal identified was to reduce plaintiff's depression and anxiety, which would decrease as she continued to take her medication. (Tr. at 526). She was also to continue to take all her medications to improve her general health. (Tr. at 529). Plaintiff did not meet discharge criteria as of date but would be considered for l

discharge "to a lower level of care when [she] [was] able to manage symptoms in a general health setting once stable." (Tr. at 532).

On March 19, 2010, aintiff aga met with SW Ma (Tr. 535 36). She indicated that plaintiff was being seen for depressed mood and anxiety. (Tr. at 535). aintiff's short-term goals were to report having no depressed symptoms, be able to identify triggers of her depression and to experience anxiety less than l

three days week. Plaintiff reported that had returned from Louisiana, and was "feeling okay not depressed. II (Id.). She would still continue to attend individual therapy bi-monthly. (Tr. at 536) .

[2] aintiff filled out a comprehensive-medical history

[6] "BUN" is "Blood urea nitrogen A laboratory test for kidney disease." Tennenhouse, supra note 4, at § 5:4. 7 PI ntiff's white blood cell count was reported as 13.3 kjul, with normal range indicated as 3.9 11.3 k/ul. . at 208) .

[8] "Hematocrit [is] [a] laboratory test of the blood." Tennenhouse, supra note 4, § 5:10. provider within a week, and that she had an abnormal high white blood cell count and high LDH levels. (Tr. at 214 15) On October I, 2002, plaintiff participated in a rehabilitation abnormal LFT9 and white program at HS Systems, Inc. to address blood cell count. (Tr. at 201-04, 219, 221) .10 The program was expected to be completed by January 1, 2003. (Tr. at 203) .11 The HSS Wellness Program's Rehabilitation Plan noted that Ms. Rodriguez was suffering from "hematologic diseases/disorder," and so had goal of "[e]valuat[ing] and stabiliz[ing] hepatic disease" such as hepatitis, and evaluating the for a biopsy or surgery. (Tr. at 203 - 04) .12

[13] Plaintiff again fill out a medical history questionnaire at this visit in Spanish. (Tr. at 237-39). She indicated that she was not on any medication at that time, and that she was not experiencing any emotional problems, such as depression or anxiety, would interfere with her lity to work. (Tr. at 238) . Dr. Graham also revisited fact that plaintiff had a history anxiety and depression disorder, although the symptoms were mild and stable. (Id.). Finally, he diagnosed her with leukocytosis (an evated white blood cell count). (Id.). That same date, Dr. Graham ordered that plaintiff undergo more lab testing. (Tr. at 240). It reflected normal results save for an

[16] This testing was also intended to rule out "pathology causing refe rred pain" versus "infect at [the] fracture site." (Tr. at 270) .

[17] The ALJ did not mention this gap of treatment in reaching his disability determination. Tr. 20 28) .

[18] "The mission of FEGS th and Human Services System has remained constant for almost three-quarters of a century: To meet the needs of the Jewish and broader community through a diverse network of high quality, cost-efficient th and human services that help each person achieve greater independence at work, at home, at school and in community, meet the ever-changing needs business and our society." About FEGS, http://www. .org/#/about fegs/ (Last visited Aug. 13, 2012). the HRA. (Tr. at 245 60) .19 On April 10, 2007, at her first F.E.G.S.

[19] She was treated at the Bronx-Lebanon Hospital Center ("Bronx Lebanon"). (Tr. at 245).

[21] Hyperlipidemia is "a term for elevated concentrations of any or all lipids in the plasma, including hypertriglyceridemia, hypercholesterolemia, etc." ~~====-=' supra note 3, at 852.

[22] Specifically, the report ed how many hours out plaintiff could perform a specific activity. She could sit e for 4 5 hours, kneel for 1 3 hours, stand for 1-3 hours, reach 8 hours, walk for 1 3 hours, for 1-3 hours, and grasp for 6 8 hours. She was unable to I or climb. (Tr. at 258). It so determined that she could not lift, carry, or push more was ten pounds. (Id.).

[23] A screening tool for depression. See Paulino v. Astrue, 2010 WL 3001 7 5 2, at * 3 (S. D . N . Y. July 30, 2010).

[26] The signature page of this Treatment Plan is not included in the record. The Treatment Plan outlines 1 of pIa iff's goals for her treatment at Bronx Lebanon. The first was to improve her depression, specifically her mood, sleep, and anxiety. (Tr. at 493) . The doctor hoped that pIa iff would improve her sadness for "5/7" days per week by taking medication, improve her anxiety "4/7" days per week by taking mediation, and improve her eep "4/7

[11] days. (Id.). Plaintiff was to continue taking antidepressants and to undergo individual psychotherapy. (Id.). she was also to meet with doctor and social worker twice per month. PI ntiff also hoped to improve general health. (Id.). The doctor instructed her to take her medications as prescribed

[27] and low up with her primary care physic once a month for regular care. (Tr. at 496). At that visit, plaintiff did not meet discharge criteria, and "require[d] treatment at a different level care." (Tr. at 499) .28 Plaintiff requested to seen bi weekly.

[27] As of that date, plaintiff was taking Lexapro 10 mg once a daYi Trazodone 50 mg once a day; Diclopen twice a day; Tobramycin eye drops six times per day; and Lidocaine 5% topical cream once a day. (Tr. at 592).

[28] Plaintiff so completed a mental heal status on that date. (Tr. at 585). She indicated that did not hear voices or believe in witchcraft. (Id.). also had to fill out a nutrition screening form, on which she indicated that she did not have prolonged periods of poor appetite or large fluctuations in weight over the proceeding three months. (Tr. at 587). Finally, plaintiff indicated that smoked and was not intending to quit. (Tr. at 593) (Tr. at 594, 605). That date, Bronx Lebanon Department of Psychiatry completed a Psycho Soc History for plaintiff. (Tr. at 596 600, 603). She reported having six children, four girls and two boys, and having the victim of domestic violence. (Tr. at 597­ 98). The form indicates that her target symptoms were anxiety, depressed mood, appetite sorder, crying spells, a ling of hopelessness, and sleep disorder. (Tr. at 596) Her functional deficit areas were considered to be coping Ils and problem solving. (Id.). In summarizing her monthly income, plaintiff reported that she received $87.00 section 8 rent, $400.00 In food stamps, and $192.00 in public assistance. (Tr. at 599). Plaintiff reported that she had previously been employed as a

[29] According to plaintiff, she has been seeing Dr. Ewaskio on a monthly basis since December 2, 2008. (Response ("Pl.'s Opp'n") 5) . mg) and Trazodone (50 mg). (Id.). Ms. Rodriguez next visi Bronx Lebanon on December 3, 2008. (Tr. at 411, 602) .30 Social worker ("SW H ) Allison Arce initially noted that plaintiff reported feeling "ok, II although she was suffering from a depressed mood and was "anxious. H The follow-up appointment with the Soci Worker was set for January 9, 2009. aintiff failed to attend her January 9, 2009 (rd.). appointment, and reschedul that visit for February 2, 2009. (rd.) . aintiff next visited with treating psychiatrist, Dr. Ewaskio, on January 13, 2009. (Tr. at 412, 607). Treatment notes

[31] "GAF [is measured on a 100 -point scale, and] covers the range from positive mental health to severe psychopathology . . " IH Monrad Aas, Global Assessment of Functioning (GAF): Properties and Frontier of Current Knowledge, 9 Annals of Gen. Psychiatry 20 (2010), available at http://www.annals-general-psychiatry.com/content/pdf/1744 859X-9­ 20.pdf. The 100-point scale is "divided into intervals, or sections, each with 10 points (for example 31-40 and 51 60) . The anchor points for erval 1-10 scribe the most severely ill and the anchor points for interval 91-100 describe the healthiest . . For example, patients with occasional panic attacks are given a symptom score the erval 51-60 (moderate symptoms), and patients with conflicts with peers or coworkers and friends, a functioning score in the interval 51-60 (moderate difficulty in social, occupational or school functioning) ." continue taking her medicines as prescribed and see her doctor once per month. (Id.). The report notes that as of that date, plaintiff required "treatment at a different level of care,1/ and would be able to manage her symptoms in a "general health setting once stable." (Tr. at 490). PIa iff reported no other specific concerns at the visit. (Tr. at 491) . Plaintiff had an appointment scheduled at Bronx Lebanon for February 10, 2009, which she called to cancel. (Id.). She indicated

[32] Fioricet with Codeine is medication used to treat pain. Tennenhouse, supra note 4, § 40:9. Ciprofloxacin,33 Ibuprofen, Lexapro, Hydroxyzine, 34 Arthrotec,

[35] and Patanol.

[36] As for her current functional capacity, she

[33] An antibiotic. Tennenhouse, supra note 4, § 40:19.

[34] An antihistamine. Tennenhouse, supra note 4, § 25:29.10.

[35] A medication used to treat osteoarthritis and rheumatoid arthritis. Tennenhouse, supra note 4, § 40:4. ~ Patanol is a "HI blocker antihistamine" used to treat "itching of allergic conj uncti vi tis [anc:~.] seasonal allergic rhinitis." Tennenhouse, supra note 4, § 40:18.

[37] The record reflects potential confusion as to Dr. Lightner's first name, as a New York State Office of Temporary & Disability Assistance Division Disability Determination's form notes a document from a Dr. E. Lightner. Tr. at 197).

[38] A medication report generated on that date shows that plaintiff was to continue taking Trazodone (100 mg) and Lexapro (2 a mg). (Tr. at 618).

[40] She the fact that surgery had been performed on plaintiff's , which deepened Ms. Rodriguez's depression. (Tr . at 370 - 71) "poor" or no ability to relate to co-workers, to deal with the public, to deal with work stresses, to function independently, and to maintain attention concentration. (Tr. at 369-70, 406-07).4l Moreover, Dr. Ewaskio noted that Ms. Rodriguez's ability to follow work rules and simple job instructions, use judgment, behave in an emotionally stable manner, relate predictably in social situation,

[41] A rating of "poor/none" indicates that the patient has "no useful ability to function" in the specified area. (Tr. at 369). ~ A rating of "fair" indicates that the patient's ability to function in the specified area "is seriously limited, but not precluded." (Tr. at 369). counseling and to take her medication as prescribed. (rd.). On January 7, 2010, pI iff saw Dr. Lee to check on her facial scar. (Tr. at 455). stated that it was "much better."

[44] The first page of this record is included at page 548.

Case Details

Case Name: Rodriguez v. Commissioner of Social Security

Court Name: District Court, S.D. New York

Date Published: Aug 24, 2012

Docket Number: 1:11-cv-07720

Court Abbreviation: S.D.N.Y.