Thomas v. Comm'r of the Soc. Sec. Admin.

479 F.Supp.3d 66

Kim THOMAS, Plaintiff,

v.COMMISSIONER OF the SOCIAL SECURITY ADMINISTRATION, Defendant.

19 Civ. 1177 (GWG)

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

Signed August 18, 2020

Charles E. Binder, Law Office of Charles E. Binder and Harry, LLP, New York, NY, for Plaintiff.

Kathryn Sara Pollack, Social Security Administration-Office of The General Counsel, New York, NY, for Defendant.

OPINION & ORDER

GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE

Plaintiff Kim Thomas brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of Social Security (the "Commissioner") denying her claim for supplemental security income ("SSI") under the Social Security Act (the "Act"). Thomas and the Commissioner both move for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c).¹ For the reasons stated below, Thomas's motion for judgment on the pleadings is denied and the Commissioner's motion for judgment on the pleadings is granted.

I. BACKGROUND

A. Procedural History

Thomas filed an application for SSI benefits on July 22, 2014, alleging a disability onset date of June 1, 2014. See Certified Administrative Record, filed June 13, 2019 (Docket # 9) ("R."), at 79, 171-79. The Social Security Administration ("SSA") initially denied Thomas's application on November 19, 2014. R. 80-85. Thomas requested a hearing before an administrative law judge ("ALJ") to review the denial. R. 86-88. A hearing was held on June 12, 2017. R. 27-67. In a written decision dated March 22, 2018, the ALJ found that Thomas was not disabled. R. 7-26. The Appeals Council denied Thomas's request for review. R. 1-6. Thomas timely filed this action pro se on February 6, 2019. See Complaint, filed Feb. 6, 2019 (Docket # 2). An attorney entered a notice of appearance for Thomas on March 28, 2019. See Notice of Appearance by Charles E. Binder, filed July 16, 2019 (Docket # 13). Thomas moved for judgment on the pleadings on August 12, 2019 (Docket # 17), and the Commissioner subsequently cross-moved for judgment on the pleadings on October 11, 2019 (Docket # 19).

B. The Hearing Before the ALJ

On June 12, 2017, Thomas and her attorney, Purcell Williams, appeared at the hearing before the ALJ in the Bronx, New York. R. 27.

Thomas testified that she was born on June 15, 1969, and was 47 years old at the time of the ALJ hearing. R. 35. She had gained 15 to 30 pounds in the last 12 months and thought the increase might be due to her taking Seroquel for her psychiatric impairment. R. 35-36. Thomas was single and lived alone, except that her nine-year old daughter sometimes lived with her on the weekends. Id. Thomas previously had custody of her daughter during the week, with the daughter's father having visitation rights on the weekend, however "ACS" got involved after Thomas accused the daughter's father of sexually molesting the child, at which point "[t]hey reversed the roles and then gave him custody of [her] daughter." R. 37.

Thomas testified that she came to the hearing alone in a cab, but that she was not able to travel by herself on a daily basis because she suffered from anxiety around too many people and got irritated. R. 38. Sometimes, Thomas thought about what happened to her daughter and started crying. Id. She did not make regular visits with family or friends but went to church "[o]nce in a blue moon." Id. Thomas did not participate in sports or hobbies, did not drink alcohol, and had not traveled out of New York in the previous two years. R. 39. Thomas smoked a pack of cigarettes every two days because she was "stressed out." Id.

Thomas testified that she was diagnosed with depression, anxiety, and bipolar disorder. Id. Thomas was not sure of the exact dates of her diagnoses, but stated she started feeling depressed after she had her daughter in 2008. R. 40. Thomas's mother suggested she seek treatment for her mental conditions and Thomas went to the Emma Bowen Community Service Center where she was seen by Dr. Keith Brackett. Id. She went to see Dr. Brackett because she felt down, worthless, kind of angry, tired, and like she did not want to really be around people. R. 41. Thomas continued treatment after initially seeing Dr. Brackett. Id. Thomas had previously seen Dr. Erica Vassell, a therapist, and was also seeing her psychiatrist, Dr. Ravelo, at the time of the hearing. R. 41-43. She had been prescribed "[a] lot" of medications, and knew she has been prescribed Ambien and Seroquel, but did not remember the names of all of the medications. R. 42. Thomas still had therapy sessions with her psychiatrist Dr. Ravelo, but she no longer saw Dr. Vassell. R. 43. Thomas had not seen a change in her symptoms after taking medications and engaging in talk therapy. Id. Thomas testified that she still felt extremely overwhelmed and had feelings of worthlessness when she did not have her daughter with her on a daily basis. R. 44. Thomas had never been hospitalized for psychiatric reasons. R. 46. Thomas stated she had one friend who was a neighbor, and that they talked on the phone and sometimes saw each other face to face when they sat on a bench together. R. 44-45. Thomas has one sister, but she was not in touch with her. R. 45. Thomas saw her mother several times a month and got along well with her. R. 47. Thomas got along with her psychiatrist, Dr. Ravelo, and his staff, but she did not get along with Dr. Vassell, because speaking with her brought out a lot of depression. R. 45-46.²

Thomas was born in New York City, completed the 11th grade, but did not have a high school diploma or GED. R. 53-54. She cooked at home maybe once a week. R. 54. She could dress herself but did not take care of her personal hygiene when she fell into a deep depression, sometimes for up to two-and-a-half weeks. R. 54. Thomas last worked in 2014 as a home health aide but stopped because of depression from going to family court for the custody dispute over her daughter. R. 55. Thomas testified that most of her work history involved being a home health aide. Id. Thomas was also self-employed for a period in 2008 when she did "childcare." R. 56. When asked by the ALJ whether there was anything else that Thomas wanted to state about her case, Thomas responded that she had insomnia and the situation with her daughter and family court was like a "nightmare" in her mind. Id.

Thomas next responded to questioning from her attorney. R. 57. When asked to define anxiety, Thomas responded that it meant "overwhelming," "not accomplishing what you started," and a "racing" heart. Id. When asked to define bipolar disorder, Thomas stated it meant that one minute she was okay and the next minute she did not want to exist. R. 58. She stated she would be lucky to have "two good days" a week. Id. Her attorney noted that when the hearing was stopped between the ALJ's questioning of Thomas and the attorney's questioning of Thomas, Thomas began crying. R. 59. Thomas stated that she cried basically every other day. Id. Thomas stated she had trouble remembering things, including appointments. Id. Thomas wrote down her medical appointments in a calendar but would forget to check the calendar. R. 60. She tried to take her medications every day, but sometimes she forgot or thought she did not want to take them. Id. Thomas reiterated that she did not take public transportation because she gets irritated when too many people are around her. R. 61. Thomas had taken a car service to doctor's appointments ever since being hospitalized for certain physical ailments. R. 61-62. That hospitalization resulted in paperwork that allowed Thomas to take a car service to her doctor's appointments. R. 62.

Thomas testified that she has had insomnia since 2008, and that it made her feel very irritable. Id. In either 2010 or 2011 she went four days without sleeping. R. 63. Thomas took Seroquel, which helped her sleep, but only for three hours. Id. Thomas testified she was not sure when she fell asleep, but she only slept three hours each night. R. 64. When she woke up, she was sluggish and the sunlight burned her eyes. Id. She frequently slept during the day for two to three hours. R. 65. Thomas sometimes took Seroquel during the day to help her sleep. R. 65-66. She thought one of the side effects of her medication was her loss of memory. R. 66. At the end of the hearing, the record was kept open to allow for the submission of records from a psychiatric consulting examiner. R. 66.

C. The Medical Evidence

The Commissioner and Thomas have both provided summaries of the medical evidence in the record. See Pl. Mem. at 1-8; Def. Mem. at 4-17. The summaries are substantially consistent with each other, although the Commissioner's summary is more comprehensive. In any event, the Court directed the parties to specify any objections they had to the opposing party's summary of the record and neither party has done so. See Scheduling Order, filed July 25, 2019 (Docket # 16 ¶ 5). Accordingly, the Court adopts both parties’ summaries of the medical evidence as accurate and complete for purposes of the issues raised in this suit. We discuss the medical evidence pertinent to the adjudication of this case in section III below.

D. The ALJ's Decision

The ALJ issued his decision on March 22, 2018. R. 10-21. First, the ALJ noted that Thomas submitted additional written evidence less than five days before the scheduled hearing date, but because the requirements of 20 C.F.R. § 416.1435(b) were satisfied, the additional evidence was admitted into the record despite being submitted past the deadline. R. 10. The ALJ noted that, in addition to the evidence that was in the record at the time of the hearing, his decision was also based on records from vocational expert Kimberly Mullimax and consultative examiners Cheryl Archbald and Amory Carr. Id.

Following the five-step test set forth in SSA regulations, the ALJ held at step one that Thomas had not engaged in...