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April 25, 1995

MARIA SARAGO, Plaintiff,
DONNA E. SHALALA, Secretary of Health and Human Services, Defendant.

The opinion of the court was delivered by: CAROL E. HECKMAN

 The parties have consented, pursuant to 28 U.S.C. § 636(c), to have the undersigned conduct all further proceedings in this case, including entry of judgment. Plaintiff initiated this action to seek review of the final decision of the Secretary of Health and Human Services (the "Secretary") denying her application for disability insurance benefits, and the Secretary has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) (Item 8).

 For the following reasons, the Secretary's motion is denied.


 Plaintiff, Maria Sarago, was born on September 1, 1969, and was twenty-four years old at the time of the hearing (T. 40). *fn1" She received a high school general equivalency diploma in 1988, and has one year of college education (T. 201). Plaintiff has no prior relevant work experience although in high school she worked as a swimming and recreational instructor, and as a park assistant for the Cheektowaga Summer Youth Program (T. 202-3). She also worked as a sales assistant in a clothing store for four months in 1987 (T. 203-5).

 On February 20, 1992, plaintiff was struck by a motor vehicle traveling at a high rate of speed while she was walking across a street. She was admitted through the emergency room to the Erie County Medical Center ("ECMC") (T. 100). X-rays showed multiple fractures of plaintiff's lower legs, which had to be repaired surgically (T. 100, 122-25). Plaintiff also suffered several internal injuries, including a fracture to the right hilum of the left kidney and a laceration to her spleen. Plaintiff underwent abdominal surgery to repair these organs (T. 132-34).

 On February 28, 1992, a psychiatric consultation was conducted to assess plaintiff's symptoms of depression (T. 117). The doctor noted that television images of cars caused plaintiff to re-experience the accident with resulting nervousness, variable sleep, helplessness, and feelings of worthlessness. According to the doctor, plaintiff was reacting to the accident with "anger, frustration, and self-pity." During the session plaintiff denied alcohol abuse but admitted to occasional marijuana use. Plaintiff was diagnosed with Adjustment Disorder with Mixed Emotions and Post-Traumatic Stress Disorder. Imipramine was prescribed. Id.

 On March 12, 1992, plaintiff was released from the hospital. Both of her legs were in casts but she was able to ambulate with a walker. Plaintiff was given specific instructions to report to the emergency room if any problems developed with her legs or with urination (T. 101).

 In May 13, 1992, plaintiff apparently attempted to commit suicide by overdosing on cocaine. She was treated at Columbus Hospital (T. 185). *fn2" That same month plaintiff enrolled herself in an outpatient program for drug addiction at Lake Shore Community Mental Health Center ("LSCMHC") (T. 173-85). Dr. Jeffrey Kashin, a psychiatrist, supervises this program but plaintiff deals mainly with two counselors (T. 213).

 The Physical Status Profile compiled by LSCMHC in May of 1992 reveals that at the time plaintiff started treatment she was ambulatory via wheelchair and occasionally walked with the assistance of a walker (T. 173-77). The record indicates that plaintiff had been receiving follow-up care from Dr. Seibel at ECMC and appeared to be healing well (T. 177).

 The initial Mental Health Assessment record indicates that plaintiff, who was then twenty-two years of age, had started using marijuana when she was eleven, was freebasing cocaine by the time she was seventeen, and had increased her usage of drugs in the last two years (T. 184). Plaintiff reported that her leg injuries were painful and she was apparently self-medicating with cocaine (T. 183). According to the assessment, plaintiff had only fair self-esteem, was wheel-chair bound and isolated (T. 180-83). Her feeling management was poor, her insight and judgment were fair, and her impulsive decision making was poor. Id.

 LSCMHC's records further indicate that plaintiff has a legal history of prostitution, generally in exchange for drugs or for the money to buy drugs (T. 182, 233). Plaintiff reported being sexually abused as a child by her adoptive father and was involved in an abusive relationship for six years (T. 181). She currently has an order of protection from her estranged boyfriend but sees him occasionally to get drugs (T. 214-15). She is the mother of two children who were four years old and three months old at the time of the hearing. Both children were prenatally exposed to drugs. She also cares for her estranged boyfriend's twelve year old daughter (T. 199).

 On June 30, 1992, plaintiff was treated in the emergency room at ECMC after she passed out at an automatic teller machine. She had fallen and hit her left side (T. 148-56). She was diagnosed with a urinary tract infection and treated with Septra (T. 148-49).

 On July 23, 1992 plaintiff was again seen in the emergency room at ECMC. Her leg cast had become wet and was deteriorating (T. 143-47). Plaintiff denied any pain. X-rays taken at that time revealed that the rod and screws were in place. The cast was reapplied and plaintiff was told to use crutches and return to the clinic in two weeks (T. 143).

 On August 22, 1992, plaintiff's cast was again changed at the ECMC emergency room after plaintiff complained that the cast was rubbing on her heel (37-41 ). She was instructed to follow-up with Dr. Seibel.

 On September 23, 1992, plaintiff was examined by Dr. Seibel (T. 135, 165). In a letter to the Department of Social Services, written by Dr. Seibel on March 9, 1993, he indicates that September 23, 1992 was the last time he examined plaintiff (T. 165). There were no complications with plaintiff's kidney. The cast was removed and x-rays revealed that her leg fractures had healed. Plaintiff was able to walk, bearing full weight and was told she could return to work. Dr. Seibel discharged plaintiff at that time. Id.

 In a letter dated June 30, 1993, Dr. Ida M. Campagna indicated that she had provided plaintiff with prenatal care and had delivered her baby (T. 188). Plaintiff had no physical impairments of which the doctor was aware although the doctor did not comment on plaintiff's drug use. Dr. Campagna opined that plaintiff was capable of working.

 Meanwhile, plaintiff filed for disability insurance on April 24, 1992 (T. 40). The application was denied initially (T. 44-7) and upon reconsideration (T. 74-77). Plaintiff then requested a hearing which was held on September 22, 1993, before Administrative Law Judge ("ALJ") Nicholas Haragos (T. 192-240). Plaintiff testified at the hearing ...

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