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GECEVIC v. SECRETARY OF HHS

April 3, 1995

ANA GECEVIC, Plaintiff, against SECRETARY OF HEALTH AND HUMAN SERVICES.


The opinion of the court was delivered by: JOANNA SEYBERT

 This action is brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Secretary of Health and Human Services (the "Secretary") that denied plaintiff's application for disability insurance benefits under the Social Security Act (the "Act"). Both plaintiff and the Secretary have moved for judgment an the pleadings pursuant to Fed. R. Civ. P. 12(c). Plaintiff argues that the Secretary failed properly to apply the Second Circuit's "treating physician rule" and, as a result, the Secretary's decision is not based upon substantial evidence. Plaintiff asks this Court to reverse the denial of plaintiff's application and remand the case for a calculation of benefits. In the alternative, plaintiff requests that the Court remand the case so that the Secretary may correctly assess the evidence giving the treating source's opinion greater weight. In her cross-motion for judgment on the pleadings, the Secretary argues that her decision was based upon substantial evidence and that the Court therefore must affirm her final determination. As the Court agrees that the Secretary did not properly apply the treating physician rule, the Court denies both motions for judgment and remands back to the Secretary for further proceedings to allow for a proper evidentiary determination.

 BACKGROUND

 Plaintiff Ana Gecevic ("Plaintiff") is a 46-year old Yugoslavian woman who was born on December 10, 1948. (Record "R.") at 76.) Plaintiff came to the United States in 1976 (R. at 34), and presently lives in an apartment in Queens, New York with her husband and four of her five children who, at the time or the hearing, ranged from four years to 23 years of age. (R. at 42.) Plaintiff had previously worked as a sewing machine operator at a knitting mill, and was working as a cleaning lady from April 28, 1986 until December 22, 1988, the day of her accident at work. (R. at 141.) Plaintiff is not comfortable with the English language, and had an interpreter by her side during the administrative hearing. (R. at 30-32.)

 Plaintiff first applied for disability benefits following her accident at work an December 22, 1988, when she tripped on a carpet and fell forward, striking her forehead, right wrist and hand. (R. at 159, 187.) Plaintiff lost consciousness for two to three seconds, and was taken by ambulance to New York Infirmary Beekman Downtown Hospital where she was treated and released that evening. (R. at 158-160.)

 As a result of her complaints of recurring dizziness, back pain, headaches, disorientation, depression and anxiety since the accident, Plaintiff has been seen repeatedly by numerous physicians. This appeal, however, centers on the diagnosis by plaintiff's treating psychiatrist, Dr. Dushan Kosovich, that, as a result of the accident, plaintiff suffers from post-traumatic stress disorder, coupled with "mixed emotional features and panic disorder." (R. at 168.) Accordingly, only the facts relevant to this diagnosis will be addressed in this Memorandum and Order.

 Plaintiff was referred to Dr. Dushan Kosovich by a former patient (R. at 181), and was first examined by the psychiatrist on July 7, 1989 (R. at 48, 54, 181.) The doctor continued to treat plaintiff every two to three weeks with psychotherapy and medication up until the day of the administrative hearing. (R. at 169, 181.) Dr. Kosovich testified at the hearing that he had years of training in the psychiatric field, as well as specialized expertise in the area of post-traumatic stress disorder. (R. at 46-47.)

 During the administrative hearing, Dr. Kosovich testified that the past-traumatic stress disorder from which plaintiff was allegedly suffering fell within the Secretary's listed impairments, 20 C.F.R. Pt. 404, Subpt. P, App. 1 (1994) (hereinafter Listed Impairments), thereby entitling plaintiff to disability benefits. (R. at 53.) The doctor indicated that plaintiff "at times gets confused and then irritable, depressed, anxious. Had restless sleep, frightening dreams, flashbacks, afraid to be alone at home, she gets very red, red patches an her face and chest and complaining of forgetfulness and poor concentration." (R. at 49.) Dr. Kosovich testified that plaintiff's condition has prevented her from being able to "go alone anywhere from the house, feels trapped and afraid to be alone home even she feels -- she's afraid to go without somebody, that she would fall down because of this dizziness and weakness." (R. at 52.) As a result of his findings, Dr. Kosovich testified that plaintiff's nonexertional limitations rendered her severely disabled and incapable of working. (R. at 53, 74.) When asked whether he had seen any significant improvement in plaintiff's condition aver time, Dr. Kosovich responded, "Unfortunately, not much really because she continues to have the same somatic . . . complaints and somatic symptomology, feeling hopeless, helpless and always -- cannot get rid of all these dreams and all these flashbacks and always coming back to her whether during the day or during the sleep, always coming back." (R. at 51.) The doctor added that plaintiff's condition had "become very very chronic," and that his prognosis "for [the] foreseeable future, it's very guarded." (Id.)

 Dr. Kosovich attributed plaintiff's condition to her work-related accident in December 1988. He stated during the administrative hearing in response to questioning regarding the event triggering plaintiff's condition,

 
Well, first of all we don't have any evidence that she ever had any emotional problems before, she was very hard worker and that she was supporting family and taking care of the family during the day and during the night working on a regular basis and she didn't go to sick leaves or any accidents before and we really don't have any evidence that she ever had any emotional problems before or any physical. So I feel that this is definitely casualty related condition of this accident.

 (R. at 50.)

 Dr. Kosovich's written reports in the record are somewhat inconsistent with his testimony at the hearing. In a report dated November 19, 1990, the doctor also specified a diagnosis of post-traumatic stress disorder with mixed emotional features, panic disorder and hypochondria. (R. at 168.) Dr. Kosovich noted plaintiff's mixture of depression and anxiety, that plaintiff's insight and judgment was "poor" and that plaintiff acted "helpless," "frightened" and "excitable." (R. at 171.) The doctor wrote that plaintiff was "severely impaired -- she thinks that she will be sick life now for ever." (Id.)

 In a later report dated January 29, 1991, however, Dr. Kosovich reiterated his diagnosis of post-traumatic stress disorder but stated that plaintiff was only a "little anxious" and a "little depressed." (R. at 181.) The doctor also indicated that although he did not "believe she does very much at home, [ ] she does take care of her younger child and does some household chores. (Id.) Dr. Kosovich did note, though, that plaintiff always came to his office accompanied either by her husband or daughter. (Id.)

 In March 1991, Dr. Jorge Oldan, a psychiatrist, met with plaintiff at the Secretary's request and conducted a psychiatric evaluation. (R. at 195-198.) In recounting the patient's medical history, Dr. Oldan noted plaintiff's allegations of dizziness, back pain, headaches and depression. Dr. Oldan found that plaintiff was generally responsive and alert and acted in a socially appropriate manner. (R. at 195.) Nevertheless Dr. Oldan indicated that plaintiff appeared preoccupied with a wide range of somatic complaints and that plaintiff's allegations about her moderately depressed moods were consistent with his findings. (R. at 196.) Dr. Oldan noted that psychotherapy might be of help (R. at 197). He concluded that plaintiff "will probably keep functioning at the same level as now in the near future" and that "post-traumatic stress disorder, with depressed mood" needed to be ruled out as a possible diagnosis. (Id.)

 Among the many doctors who treated the physical manifestation's of plaintiff's alleged condition, Dr. C. Sharma performed neurological examination on behalf of the Liberty Mutual Insurance Company on June 5, 1989 (R. at 189-91), and again on March 12, 1990 (R. at 183-85). The doctor noted on both occasions the plaintiff's complaints of pain in her hands, neck, and back, as well as dizziness and poor balance. (R. at 183.) The doctor concluded after both examinations that the plaintiff did not suffer any neurological impairment, her attention and affect were appropriate, there was no evidence of thought disorder or psychomotor abnormality, and that in his opinion, the plaintiff was able to return to full-time work. (R. at 184-85, 190-91.)

 A second neurologist, Dr. Robert Blankfein, examined plaintiff on June 12, 1989. (R. at 187-88.) The doctor's report revealed that plaintiff was still complaining of headaches and neck pain, as well as pain in her right middle finger. (R. at 187.) The plaintiff told the doctor that she had poor balance, and claimed she had fallen on five occasions since her accident. (Id.) The plaintiff also alleged ringing in her ears, poor vision and trouble sleeping at night. Dr. Blankfein's examination found the plaintiff to have no serious neurological problems. (Id.) The doctor noted that the ...


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