Baker v. Nancy A. Berryhill Acting Comm'r of Soc. Sec.

DIANE L. BAKER, Plaintiff, v. NANCY A. BERRYHILL Acting Commissioner of Social Security, Defendant.

17cv8433 (AT) (DF)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

February 19, 2019

REPORT AND RECOMMENDATION

TO THE HONORABLE ANALISA TORRES, U.S.D.J.:

In this action, plaintiff Diane L. Baker ("Plaintiff"), through counsel, seeks review of the final decision of the Acting Commissioner of the Social Security Administration ("SSA") ("Defendant" or the "Commissioner"), denying Plaintiff disability insurance benefits under Title II of the Social Security Act (the "Act") on the ground that she was not disabled under the Act. Although Plaintiff has not specified the authority for the motion she has now filed, this Court assumes that she is moving pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, for judgment on the pleadings reversing the administrative decision of the Commissioner or, in the alternative, remanding the decision for a new hearing. Defendant has cross-moved under Rule 12(c), for judgment on the pleadings affirming that decision.

For the reasons set forth below, I respectfully recommend that Plaintiff's motion (Dkt. 15) be granted to the extent that the case is remanded for reconsideration, and that Defendant's cross-motion (Dkt. 19) be denied.

BACKGROUND¹

Plaintiff initially applied for disability insurance benefits on August 1, 2014, alleging disability under the Act as of October 10, 2013, based on depression, fibromyalgia,² migraines, ADHD,³ irritable bowel syndrome, "[s]pine and joint pain weakness and degeneration," and PTSD.⁴ (R. at 99.) The application was denied (id. at 98), and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). ALJ Robert Gonzalez held two hearings in White Plains, New York. The first hearing was held on October 25, 2016 (id. at 75-97), but was adjourned for production of a medical expert. At the second hearing, held on January 13, 2017 (id. at 47-72), the ALJ heard testimony from Plaintiff, as well as from medical expert Dr. Arthur Lorber (an orthopedic surgeon), and vocational expert ("VE") Esperanza DiStefano. On February 28, 2017, ALJ Gonzalez rendered a decision unfavorable to Plaintiff, finding that, although Plaintiff was severely impaired, she had retained the residual functional capacity ("RFC") to perform "sedentary work" pursuant to 20 C.F.R § 404.1567(a), with certainlimitations, and therefore had not been disabled from October 10, 2013 (the alleged onset date ("AOD") of her disability) through December 31, 2015 (the date she was last insured). (Id. at 10-24.) The Appeals Council denied Plaintiff's request for review on September 21, 2017. (Id. at 1-6.) Thereafter, ALJ Gonzalez's decision became the final decision of the Commissioner.

A. Plaintiff's Personal and Employment History

Plaintiff was 46 years old, single, and with two young children when she allegedly became disabled. (Id. at 77, 99.) According to Plaintiff's disability application, she had run her own business from October 1999 through August 2014. (See id. at 234, 235.) In addition, from 2002 through 2006, she had worked as a "flagger" for repairing bridges, and from 1985 through 1996, she had worked as a hair dresser. (Id. at 84, 235.)

B. Medical Records

As Plaintiff reported that her disability began on October 10, 2013, the relevant period under review runs from that date until December 31, 2015, the date when Plaintiff was last insured. See 42 U.S.C. §§ 423(a)(1), (c)(1); 20 C.F.R. §§ 404.130, 404.315(a); Arnone v. Bowen, 882 F.2d 34, 37 (2d Cir. 1989).⁵

1. Medical Evidence Within the Relevant Period

During the relevant period, the medical evidence of record consists of treatment records and other information submitted by Plaintiff's treating sources, as well as reports of examiningand non-examining medical consultants. The most relevant of this medical evidence regarding Plaintiff's physical and mental impairments is detailed below.

a. Physical Impairments

i. St. Peter's Health Partners Shelly M. Gilbert (Physician's Assistant), and Lauren Lundy (Nurse Practitioner)

It appears from the Record that, during the relevant period, St. Peter's Health Partners ("St. Peter's") served as Plaintiff's primary medical care provider. On January 27, 2014, a little over three months after the claimed onset of Plaintiff's disability, she was seen at St. Peter's by Shelley M. Gilbert, a physician's assistant ("PA"). PA Gilbert noted Plaintiff's complaints of "a significant migraine, brought on by chronic neck pain," nausea, GERD (i.e., gastroesophageal reflux disease),⁶ anxiety, and chronic pain.⁷ (Id. at 462.) PA Gilbert also noted that Plaintiff was experiencing an increase in anxiety and depression. (Id.) She assessed Plaintiff, at that time, with depressive disorder, chronic back pain, and fibromyalgia. (Id.) Upon a review of systems, PA Gilbert noted positive responses for headache, anxiety, depression, joint pain, and joint swelling. (Id. at 464.) Physical examination results, however, were generally unremarkable. (Id. at 464-65.)

On May 6, 2014, Plaintiff again saw PA Gilbert, who noted that Plaintiff had seen a psychiatrist, who had diagnosed her with bipolar depression and had prescribed Wellbutrin.⁸ (Id. at 457.) A review of systems indicated headache, "numbness in extremities," "decreased appetite," "back pain, joint pain, joint swelling, muscle weakness, neck pain," and "fatigue." (Id. at 458.) Physical examination resulted in normal findings, however, except that "soft tissue discomfort" at "18 total tender points" was noted. (Id. at 459.)

On June 10, 2014, Plaintiff returned to PA Gilbert for a follow-up examination after having been prescribed oxycodone.⁹ PA Gilbert noted that Plaintiff's chronic pain was "much improved" after taking oxycodone. (Id. at 452.) A review of systems still indicated "[b]ack pain, [j]oint pain, [m]uscle weakness, [and] [n]eck pain" (id. at 454), but a physical examination yielded normal results (id. at 455). Approximately one month later, Plaintiff again visited PA Gilbert, because her insurance apparently would not pay for the high dosage of oxycodone that had been prescribed. (Id. at 657.) PA Gilbert lowered the oxycodone dosage, and assessed Plaintiff with chronic pain, GERD, lower back pain, neck pain, and right shoulder pain. (Id. at 660.)

On September 2, 2014, PA Gilbert completed a comprehensive medical source statement (the "2014 MSS"). (Id. at 404-13.) In that statement, she diagnosed Plaintiff with "fibromyalgia, depression, bipolar disorder, pernicious anemia, chronic paid, [and] GERD." (Id. at 404.) With regard to these conditions, she wrote that Plaintiff was "unable to walk standingupright without significant pain," that Plaintiff "suffer[ed] from severe depression for which she [took] daily anti-depressants," and that it was "difficult for her to get out of bed" and "concentrat[e] on tasks." (Id.) At that time, Plaintiff was prescribed 10 different medications, including Klonopin,¹⁰ omeprazole,¹¹ oxycodone, Vicoprofen,¹² Viibryd,¹³ and Wellbutrin. (Id.) PA Gilbert indicated that the prognosis was "lifelong." (Id. at 405.) She wrote that Plaintiff was "often . . . . crying and visibly depressed." (Id.) She noted that Plaintiff's "symptoms continue[d] to decline, specifically in regard to her physical health," and stated, in particular, that Plaintiff's "anthralgias/myalgias continue[d] to worsen and [were] not responding well to pain management." (Id.)

PA Gilbert's clinical findings were diffuse myalgias and arthralgias, diminished patellar reflexes, and radicular issues. (Id. at 413.) She specifically found that "all [of Plaintiff's] joints [had] lost [range of motion] and [were] functioning at about 30% of normal [range of motion]." (Id.) PA Gilbert also found that Plaintiff suffered from "extreme fatigue after any physical exertion" and that "this [was] also secondary to chronic depression." (Id.) She found thatPlaintiff was "unable to function for several days at a time." (Id.) Further, she found that Plaintiff was "limited" in her adaptive abilities (because she was "resistant to change secondary to depression and [] anxiety"); in her upper extremities with repetitive movements; in her posture (as she was "unable to stay in one postural position for long periods of time" and "often shift[ed] from sitting to standing secondary to pain"); in understanding and memory (as, "due to depression and chronic medication use," she had "difficulty with [her] short term memory"); and in concentration and persistence. (Id. at 407-08.) She assessed Plaintiff, however, as having no limitations in her social interactions or in her ability to handle payment benefits (and thus presumably in her ability to maintain finances). (Id. at 408-09.)

PA Gilbert's assessment included findings regarding Plaintiff's functional limitations. Specifically, she found that Plaintiff could "occasionally (up to 1/3 of a work day)" "lift and carry" up to 20 pounds, and that she could "stand and/or walk," as well as "sit," "up to [six] hours per day." (Id. at 409.) She further assessed diminished "attention and concentration" abilities and diminished short-term recall, although Plaintiff's orientation and "insight and judgement" were assessed to be "intact." (Id. at 410.)

PA Gilbert noted that Plaintiff's ability to self-employ as a home cleaner was reduced; in this regard, she indicated that, while Plaintiff "attempt[ed] to clean homes for income," she was "often unable to complete [] tasks secondary to fatigue and pain." (Id.) PA Gilbert also wrote that, "[a]t times, [Plaintiff had] come to [PA Gilbert's] office rather unkempt" and had "trouble keeping up with shopping and cleaning/cooking secondary to chronic pain." (Id.) While PA Gilbert clarified that her office was not a mental health clinic, she did indicate that Plaintiff seemed chronically depressed, despite her "speech, thought, [and] perception" being otherwise "intact." (Id. at...