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FRAGALE v. CHATER

February 21, 1996

CATHERINE M. FRAGALE, Plaintiff,
v.
SHIRLEY S. CHATER, Commissioner of Social Security, Defendant.



The opinion of the court was delivered by: HECKMAN

 CAROL E. HECKMAN

 UNITED STATES MAGISTRATE JUDGE

 The parties have consented to have the undersigned conduct any and all further proceedings in this case, including entry of final judgment, in accordance with 28 U.S.C. § 636(c). Plaintiff initiated this action to seek review of the final decision of the Secretary of Health and Human Services (the "Secretary") *fn1" denying her application for disability and Supplemental Security Income ("SSI") insurance benefits. The Secretary has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). For the following reasons, the Secretary's motion is denied.

 BACKGROUND

 Plaintiff was born on November 30, 1964 (T. 89). *fn2" She obtained an associate's degree in business administration (T. 144). Plaintiff has worked as a cashier in a fast food operation and a supermarket, and worked as a cook in Pizza Hut (T. 322).

 On September 13, 1993, ALJ Baker issued her decision finding that plaintiff was not disabled within the meaning of the Social Security Act (T. 19-26). According to the ALJ, the medical evidence established that plaintiff suffered from Fibromyalgia, asthma, allergies, depression, and substance abuse, but that these impairments considered alone or in combination did not meet or equal any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the "Listings") (T. 25). The ALJ also found that plaintiff was not a credible witness. Furthermore, the ALJ found that plaintiff could not perform her past work, but that she retained her residual functional capacity to do light work, limited by an inability to be exposed to environmental irritants and stressful situations (Id.).

 The decision of the ALJ became the final decision of the Secretary when, on January 13, 1995, the Appeals Council denied plaintiff's request for review (T. 7-8). On appeal, plaintiff submitted a letter from Dr. Richard Lanham, dated April 7, 1994. Dr. Lanham stated that he is plaintiff's treating physician and that she suffers from CFS, and has suffered for the past six and a half years (T. 351). The Appeals Council did not believe that the letter was material to the issue of whether plaintiff was disabled on or before the date of the ALJ hearing (T. 8). Plaintiff filed this action on March 13, 1995 (Item 1).

 The medical evidence indicates plaintiff sought treatment in 1987 and 1988 for various conditions including mononucleosis (T. 300), back and neck pains (T. 301-302, 305), and headaches (T. 301).

 In January, 1991, plaintiff sought help for her alcohol and drug dependency at Horizon Human Services (T. 203). At the hearing, plaintiff testified that she had been sober since March 17, 1991 (T. 41).

 Plaintiff was seen on October 23, 1991 by Mary Callaghan, a physician's assistant (T. 174). Plaintiff complained of chronic fatigue, intermittent back spasms and fever, headaches, and an inability to concentrate (Id.). Ms. Callaghan noted that plaintiff did not meet the criteria for CFS.

 From November, 1991 to June, 1992, plaintiff was treated at Buffalo General Hospital for complaints of sore throat and sinus congestion (T. 177, 180), asthma and headaches (T. 194-95), chronic fatigue (T. 180-81, 189), and knee pain (T. 181, 186).

 Plaintiff was seen by Dr. Ileana Madrigal on March 27, 1992 (T. 274-75). Plaintiff believed that she had candida, but Dr. Madrigal advised her otherwise (T. 274). The diagnosis was fibromyalgia, asthma, high cholesterol (T. 274). Elavil, an anti-depressant medication, was prescribed (Id.)

 The April 16, 1992 medical records indicate that plaintiff was seen at Millard Fillmore Hospital due to allergies and tiredness cause by Sudafed (T. 277). Plaintiff also reported that she had mood swings and that Elavil was helping her feel better (Id.).

 On August 13, 1992, plaintiff reported feeling "very fatigued" (T. 283). She also complained of muscle aches and asthma (Id.).

 Progress notes of October, 1992, indicate that plaintiff's emotional state was "great", but that she felt fatigued especially after increased activity (T. 285). The diagnosis continued to be Fibromyalgia (T. 286).

 On April 16, 1993, plaintiff called Millard Fillmore Hospital requesting a referral to a CFS specialist (T. 331).

 DISCUSSION

 I. Scope of Judicial Review.

 The Social Security Act states that, upon review of the Secretary's decision by the district court, "the findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive. . . ." 42 U.S.C. § 405(g). Substantial evidence is defined as evidence which a "reasonable mind might accept as adequate to support a conclusion . . . ." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938), quoted in Richardson v. ...


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