Timothy M. v. Kijakazi

TIMOTHY M., ^[1] Plaintiff, v. KILOLO KIJAKAZI, ^[2] Acting Commissioner of Social Security, Defendant.

No. 1:20-cv-310 (BKS)

United States District Court, N.D. New York

September 22, 2021

For Plaintiff: Charles E. Binder, Law Office of Charles E. Binder and Harry J. Binder, LLP

For Defendant: Antoinette T. Bacon, Hugh Dun Rappaport Office of the General Counsel.

MEMORANDUM-DECISION AND ORDER

Hon Brenda K. Sannes, United States District Judge:

I. INTRODUCTION

Plaintiff Timothy M. filed this action under 42 U.S.C. § 405(g) seeking review of a decision by the Commissioner of Social Security (the “Commissioner”) denying Plaintiff's application for Social Security Disability Insurance (“SSDI”) Benefits. (Dkt. No. 1). The parties' briefs, filed in accordance with N.D.N.Y General Order 18, are presently before the Court. (Dkt. Nos 13, 17, 20). After carefully reviewing the Administrative Record, ^[3] (Dkt. No. 11), and considering the parties' arguments, the Court affirms the Commissioner's decision.

II. BACKGROUND

A. Procedural History

Plaintiff applied for SSDI benefits on May 8, 2014, alleging disability due to a variety of physical and mental impairments, including depression, post-traumatic stress disorder (“PTSD”), chronic alcoholism, chronic hepatitis C, cognitive and behavioral issues, spinal stenosis, anger problems, and anxiety. (R. 360-63; see R. 378). Plaintiff alleged a disability onset date of August 1, 2009, (R. 360), through his date last insured (“DLI”) of September 30, 2012, (see R. 303). The Commissioner denied Plaintiff's claim on June 10, 2014. (R. 303). Plaintiff appealed that determination, and a hearing was held before Administrative Law Judge (“ALJ”) Mark Hecht on February 24, 2016, at which Plaintiff was represented by counsel. (R. 258-96). On March 11, 2016, ALJ Hecht issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. (R. 11-17). Plaintiff filed a request for review of that decision with the Appeals Council, which denied review on October 13, 2017. (R. 1-7).

On December 13, 2017, Plaintiff filed a civil action in the United States District Court for the Southern District of New York. (See R. 974-77). The parties stipulated to remand the matter to the Commissioner for further proceedings, which the Honorable Katherine B. Forrest ordered on August 1, 2018. (R. 969-70). On February 8, 2019, the Appeals Council ordered the matter remanded for a new hearing and decision by an ALJ. (R. 964-66).

A second hearing was held before ALJ Mary Sparks on May 15, 2019, at which Plaintiff was represented by counsel. (R. 915-61). On July 24, 2019, ALJ Sparks issued a decision finding that Plaintiff was not disabled under the Social Security Act. (R. 895-905). Plaintiff filed a request for review of that decision with the Appeals Council, which denied review on February 12, 2020. (R. 875-81). Plaintiff commenced this action on March 18, 2020. (Dkt. No. 1).

B. Plaintiff's Background and Testimony

Plaintiff was born in 1958 and was 51 years old at the alleged onset of his disability and 54 years old at the time of the DLI. (R. 919). He has a high school education and past relevant work as a carpenter, protective signal installer, and electrician. (R. 919, 954-55). Plaintiff, who has not worked since the alleged onset date, testified that he stopped working because of “physical problems” and because he became “very ill” after he started treatment for hepatitis C in 2007. (R. 919, 925). Plaintiff did not complete this first attempt at treatment for his hepatitis C; however, he later successfully completed treatment in May 2009, and his hepatitis C has been in remission since then. (R. 927-29; see R. 428).

Plaintiff was incarcerated from July 2010 to July 2012, (see R. 268), and he testified that while in custody he was assigned to maintenance work details and assisted an instructor with teaching students how to read electrical diagrams, (R. 930-31). Plaintiff also testified that he was on psychotropic medications while incarcerated. (R. 931). Upon release, he was required to seek substance abuse counseling as a term of his parole. (R. 932).

With regard to mental health issues, Plaintiff testified that, during the relevant time period, he was “paranoid” and “fearful all the time, ” and that he “[did not] go out and do things unless [he] ha[d] to.” (R. 935). Plaintiff testified that he suffered from panic attacks, agoraphobia, and depression during the relevant time period. (R. 939-42). After being released from prison, Plaintiff lived with his girlfriend in New York City and shortly thereafter started treatment at Saint Mark's Institute for Mental Health (“St. Mark's”). (R. 936-38). Plaintiff also testified to difficulties with focus and concentration and anger issues. (R. 945, 948).

C. Mental Health Evidence^[4]

1. Letters from Providers

The record contains letters from certain providers indicating that Plaintiff received some form of treatment from them. In a letter dated April 23, 2016, James C. Craig, M.D., stated that he treated Plaintiff from 2005 to 2010, and that Plaintiff “battled alcoholism, anxiety and hepatitis C.” (R. 1350). Dr. Craig stated that Plaintiff's conditions “affected his ability to obtain and maintain employment” and noted that the conditions dated back to a visit on September 9, 2005 and continued through February 22, 2010. (Id.).

In a letter dated March 29, 2016, Sherry Gonyea-McElroy, M.S., stated that Plaintiff “was in the PSAP/[Mentally Ill. Chemically Addicted (“MICA”)^[5] Treatment Program at Transitional Services Association, Inc. from 12/31/08-9/24/09 for dually diagnosed individuals with mental illness and chemical addiction.” (R. 1347, 1349). On April 20, 2016, Felicia Pirrone, a MICA counselor, also submitted a letter stating that Plaintiff's treatment included individual counseling, Alcoholics Anonymous meetings, group therapy, and Day Treatment. (R. 1349).

None of the above individuals provided any further details or treatment records.

2. New York State Department of Correctional Services

The administrative record contains records from the New York State Department of Correctional Services that span approximately from August 2010 to June 2012, during the period Plaintiff was incarcerated. (See R. 438-75). As to Plaintiff's mental impairments, the records mention depression and anxiety, (R. 473), and indicate that Plaintiff was on medications including Effexor and Buspar, which are used to treat depression and anxiety, (e.g., R. 440).

3. St. Mark's Institute for Mental Health

Plaintiff became a patient of St. Mark's on July 17, 2012. (See R. 478). Giovanny Nunez, M.D., conducted an initial evaluation and mental status examination of Plaintiff on August 8, 2012. (R. 618-28). Dr. Nunez's records indicate that Plaintiff started treatment at St. Mark's as a condition of his parole. (R. 622 (quoting Plaintiff as stating “I have to do a substance abuse program for parole”)). Plaintiff reported to Dr. Nunez that he had a history of PTSD “from seeing a girl dying in his arms in 1982, and having been assaulted several times.” (Id.). Plaintiff was currently on Effexor and Buspar and reported feeling “‘confused', anxious, tense, depressed.” (Id.). Plaintiff denied suicidal or homicidal ideation and had no psychotic symptoms. (Id.). Dr. Nunez assigned Plaintiff a primary diagnosis of alcohol dependence and secondary diagnoses of PTSD and nicotine dependence. (R. 623). Other than noting Plaintiff had depressed mood, the results of Dr. Nunez's mental status examination were all within normal limits. (R. 626-28).

Plaintiff returned to see Dr. Nunez on September 5, 2012. (R. 629). Dr. Nunez reported that Plaintiff was “doing better” and felt his medication was “working for him.” (Id.). On October 5, 2012, Dr. Nunez reported that Plaintiff was “doing well, ” although he complained of “sexual side effects with Effexor” and requested a switch to Wellbutrin. (R. 634).

On November 6, 2012, Plaintiff saw Benjamin Buckholts, M.D. (R. 639-43). Dr. Buckholts reported that Plaintiff was “still anxious, depressed, angry, incapable to control any emotion. Irritable and easily provoked.” (R. 639). On December 27, 2012, Dr. Nunez reported that Plaintiff's “mood [was] brighter, calm, cooperative, in good control of behavior.” (R. 659).

Plaintiff's first documented visit with Mark Rybakov, D.O., was on February 2, 2013. (R. 669-75). The treatment note from this visit indicates that Plaintiff reported his mood to be “slightly depressed” and that he was having trouble sleeping. (R. 669). On March 2, 2013, Dr. Rybakov noted that Plaintiff was “doing well overall” and that his “sleep ha[d] improved, ” although Plaintiff spoke about “people being aggressive” and had “some antisocial traits.” (R. 676). Plaintiff continued to see Dr. Rybakov through at least September 26, 2016. (See generally R. 681-830, 1127-31, 1291-1324).

4. The Second Wind, Inc.

Plaintiff was first evaluated by John Bliss, LCSW, of The Second Wind, Inc. on October 15, 2012. (See R. 482-91). At that time, Mr. Bliss described Plaintiff's presenting problem as “extensive drug/alcohol history.” (R. 482). Mr. Bliss listed Plaintiff's diagnoses as recurrent major depressive disorder, alcohol dependence, and PTSD. (R. 491). Mr. Bliss also performed a mental status examination, and all of the results were within normal limits. (R. 489-90). Mr. Bliss recommended that Plaintiff attend weekly individual counseling sessions. (R. 491).

The record indicates that Plaintiff continued to see Mr. Bliss regularly, approximately once a week, through June 2018. (See generally R. 531-52, 595-603, 831-36, 851-52 860-62, 1268-73; see R. 1506 (referring to date of most recent exam as June...