Douglas v. Saul

SANDRA DENISE DOUGLAS, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security, Defendant.

No. 20 Civ. 0322 (PED)

United States District Court, S.D. New York

July 8, 2021

DECISION AND ORDER

PAUL E. DAVISON, U.S.M.J.

Plaintiff Sandra Douglas brings this action pursuant to 42 U.S.C §§ 405(g) and 1383(c) seeking judicial review of a final determination of the Commissioner of Social Security (the “Commissioner”) denying her application for disability benefits.^[1] This case is before me for all purposes on the consent of the parties, pursuant to 28 U.S.C. § 636(c) (Dkt. #11).

Presently before this Court are the parties' cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Dkt. #18 (plaintiff's motion), #19 (plaintiffs memorandum of law), #22 (defendant's cross-motion), #23 (defendant's memorandum of law) and #24 (plaintiffs reply memorandum of law)). Plaintiff argues, as the basis for her motion, that the Administrative Law Judge (“ALJ”) erred because she: (1) failed to give controlling weight to the opinion of plaintiffs treating psychiatrist; (2) failed to consider the impact of plaintiffs asthma and decreased visual acuity on her ability to function in a workplace setting; (3) erroneously concluded that plaintiff could perform her past work; and (4) erroneously concluded that there are other jobs existing in the national economy that plaintiff is also able to perform. Dkt. #19, at 24-35^[2] Defendant asserts, in response, that the ALJ applied the correct legal standards and that substantial evidence supports the ALJ's decision. Dkt. #23, at 16-28. For the reasons set forth below, plaintiffs motion is GRANTED and defendant's motion is DENIED.

I. BACKGROUND

The following facts arc taken from the administrative record (“R.”) of the Social Security Administration filed by defendant on June 8, 2020 (Dkt. #14).

A. Application History

On September 19, 2016, plainti ff filed her claims for disability benefits, alleging that she had been disabled since July 6, 2014 due to high cholesterol, asthma, hepatitis C, depression, anxiety, emotional stress, post-traumatic stress disorder (“PTSD”), insomnia, lack of energy and feeling unable to complete simple tasks. R 163-73, 217, 220. Her claims were administratively denied on October 31, 2016; plaintiff requested a hearing before an ALJ. On July 19, 2018, a hearing was held before ALJ Sommattie Ramrup. R. 32-68. Plaintiff appeared with counsel and testified at the hearing; Vocational Expert (“VE”) Esperanza DiStefano also testified. On November 21, 2018. the ALJ issued a written decision in which she concluded that plaintiff was not disabled within the meaning of the Social Security Act (“SSA”). R. 15-27. The ALJ s decision became the final order of the Commissioner on November 26, 2019, when the Appeals Council denied plaintiff s request for review. R. 1-5. This action followed, B. Consultative Psychiatric Evaluation

On October 21, 2016, psychiatrist Ruby Phillips conducted a consultative examination of plaintiff. R. 681-84. Dr. Phillips noted that plaintiff lived with her granddaughters (aged 7 and 8) and arrived to the appointment by bus unaccompanied. R. 681. Plaintiff reported that she was last employed as a maintenance worker in 2014 for eight months, and left because she was terminated. Id.

Plaintiff reported symptoms of depression (dysphoric mood), difficulty falling asleep and increased appetite; she denied suicidal/homicidal ideation, intent or plan. R. 681. She reported symptoms of anxiety (excessive worrying, nightmares, daily flashbacks and hyper vigilance), Id. She also reported panic attack symptoms (palpitations, breathing difficulties, headaches and fear of losing control) which she stated occurred four times a week, “triggered by external cues of her trauma.” Id. Plaintiff reported that she dresses, bathes and grooms herself, prepares food with her daughter's assistance, does general cleaning, shops with her daughter, managers her own money and takes public transportation. R. 683. She reported a close relationship with her daughter and granddaughters. Id, Plaintiff stated she spends her days sleeping and ciying. Id.

Plaintiff was cooperative during the mental status exam, and her manner of relating was adequate. R. 682. Dr. Phillips noted that plaintiff was appropriately dressed and well-groomed, and her eye contact was appropriate. Id. Plaintiff s posture and motor behavior weie noimal, her speech was fluent, her voice was clear and her speech and language skills were adequate. Id. According to Dr. Phillips, plaintiffs thought processes were “(c]oherent and goal directed with no evidence of hallucinations, delusions, or paranoia in the evaluation setting” and she was oriented to person, place, and time. R. 682-83. Plaintiffs affect was of full lange and appropriate in speech and thought content”; her mood was neutral. R. 682. Dr. Phillips noted that plaintiffs attention and concentration were intact, and she was able to count and perform simple calculations and serial 3's. R. 683. The doctor also noted that plaintiffs lecent and remote memory skills were intact, that she was able to recall 3/3 objects immediately and 3/3 after five minutes, and that she could recall six digits forward and three digits backward. Id. Dr, Phillips estimated that plaintiffs intellectual functioning was average. Id. The doctor also noted that plaintiffs general fund of information was appropriate to experience, and that her insight and judgment were fair. Id.

Dr. Phillips evaluated plaintiffs functional abilities as follows: (1) plaintiff can follow and understand simple directions and instructions, perform simple tasks independently, maintain attention and concentration, maintain a regular schedule, learn new tasks, perform complex tasks independently, make appropriate decisions, relate adequately with others; (2) plaintiff is markedly limited in her ability to appropriately deal with stress. R. 683-84. Dr. Phillips opined that plaintiffs “[d]ifficuities are caused by anxiety, ” and that her psychiatric problems may significantly interfere with [her] ability to function on a daily basis.” R. 684. Dr. Phillips diagnosed PTSD. Id. She assessed plaintiffs prognosis as “fair, given adequate treatment” and recommended “[i]ndividual psychological therapy with an evidenced-based protocol for PTSD.” Id.

C. Treating Psychiatrist's Opinion

On December 10, 2016, plaintiffs treating psychiatrist (Dr. James Herivaux) completed a “Psychiatric Medical Report” form and a “Medical Source Statement.” R. 695-702. Dr. Herivaux stated that his most recent mental status examination of plaintiff revealed the following: plaintiff was anxious and tearful; her speech, thought organization and thought content were cognitively intact; her mood was depressed and her affect was mood congiuent, her attention, concentration, long-term and short-term memory were poor; her ability to perform calculations and serial sevens was limited; and her insight and judgment were limited. R. 699700. Dr. Herivaux assessed plaintiffs ability to perform work-related activities on a sustained basis as follows:

Marked Limitations

-carry out simple or complex instructions

-make judgments on simple or complex work-related decisions

-understand and remember complex instructions

-interact appropriately with supervisors and co-workers .

-respond appropriately to usual work situations and to changes in a routine work setting

Moderate Limitations

-understand and remember simple instinctions

Mild Limitations

-interact appropriately with the public

R.695-96.

D. Vocational Expert's Hearing Testimony

At the hearing, the ALJ asked the VE the following question;

I'd like you to assume a hypothetical individual of the claimant s age, education, and past work experience who is able to perform simple, routine, light work. The individual can occasionally climb stairs and ramps, but can never climb ladders, ropes, or scaffolds. The individual can occasionally balance, stoop, kneel, crouch, and crawl. The individual can occasionally interact with coworkers and supervisors, but never with the general public. The individual cannot perform a job with a strictly enforced production quota. Can such an individual perform any of the claimant's past work?

R. 57. The VE responded that such an individual would be able to perform the night cleaner position (which is light and unskilled). R. 58. The ALJ continued: “And if 1 were to find that that's not past relevant work, is there any other work?” Id. The VE responded that such an individual would be able to perform the job of a marker (DOT code 209.587-034, 305, 150 positions nationally), a router (DOT code 222.587-038; 52, 981 positions nationally) and a silver wrapper (DOT code 318.687-018; 107, 988 positions nationally). R. 58-59. In response to questions from the ALJ regarding time off task and absences, the VE also testified: (1) there would be a 50% erosion in the number of these jobs for an individual who is off task 15% of the time; and (2) an individual who is absent two days per month on a continuous basis would be unable to maintain employment. R. 59. The ALJ asked: “Is your testimony today consistent with the DOT?” Id. The VE responded:

Yes, your honor, with the exception of my opinion regarding time off task and days absent from work. Those opinions are formed from my over 25 years of experience in placing individuals with physical and/or mental limitations on jobs that are considerate of their limitations, restrictions, interests, and their ability in knowing what employers will tolerate and knowing what their absentee policies are.

R. 60.

Plaintiffs counsel subsequently questioned the VE, as follows:

Q. What is the minimal

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