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AGNESE v. CHATER

August 13, 1996

DORIS AGNESE, Plaintiff, against SHIRLY S. CHATER, Commissioner of Social Security, Defendant.


The opinion of the court was delivered by: WEXLER

 WEXLER, District Judge

 The above-referenced action was brought by plaintiff Doris Agnese ("Agnese") for review of the decision of the Commissioner of Social Security (the "Commissioner") denying disability insurance benefits under the Social Security Act (the "Act"). In February 1992, Agnese filed an application for disability insurance benefits; that application was denied initially and on reconsideration. Upon Agnese's request, a hearing was held before an administrative law judge ("ALJ") on October 20, 1992. The ALJ found that Agnese was not disabled during the relevant period of time. However, the Appeals Council vacated the ALJ's ruling and remanded with instructions to consider additional evidence. A supplemental hearing was held on January 11, 1994, after which the ALJ ruled again that Agnese was not disabled during the relevant period. The Appeals Council then denied Agnese's request for review, making the ALJ's decision the final decision of the Commissioner. After Agnese filed this action, the Commissioner moved for judgment on the pleadings affirming her final decision; Agnese opposed the Commissioner's motion in the form of a cross-motion for judgment on the pleadings. Those motions are presently before the Court.

 I. BACKGROUND

 Agnese alleges that since October 13, 1972 she has been disabled as the result of panic attacks and agoraphobia (generally understood as the fear of open or public places). The Commissioner determined that she did not present evidence sufficient to prove that she suffered from a disabling impairment prior to December 31, 1973, the date Agnese last met the Act's insured-status requirements.

 According to her testimony at the hearings before the ALJ, Agnese was born January 28, 1942, attended one year of college, was married June 30, 1968, and has four children (born 1969, 1970, 1974, and 1975). She described her panic attacks as a shortness of breath and heart palpitations, accompanied by a severe disorientation. "I feel like I'm losing control totally," she testified. Record on Appeal ("R.") at 205. She explained that the attacks usually last for thirty to forty-five minutes, but that she does not "feel right" for the remainder of the day. R. at 206. She has an attack at least once a day. R. at 207.

 Agnese recalled that her first panic attack occurred on October 13, 1972, when she was having lunch with a neighbor. R. at 206. She testified that after the first attack she saw Dr. Samuel Feinberg, her family physician, who prescribed Valium. R. at 206-207. She testified that she was treated by various psychologists for short periods of time between 1972 and 1977, and by Jeanne Carlson, a psychotherapist, from 1977 to 1982, and that since 1986 she has seen Dr. Julian Herskowitz once or twice a week. R. at 212-219. Agnese testified that she did not seek treatment on a regular basis between 1982 and 1986 because she could not "find anyone that could identify what [she] was going through and help [her] any more than [she] was being helped already." R. at 217. She recalled having at least two or three panic attacks a day during that period. R. at 217.

 Dr. Herskowitz indicated, in a report dated March 16, 1992, that he had been treating Agnese since February 1987 and that she suffered from "panic disorder with agoraphobia dating back to 1972 when [she] experienced terrifying panic episodes with resultant fears of going crazy or dying." R. at 90. According to Dr. Herskowitz's report, Agnese had seen Dr. Feinberg after her first panic attack, but Agnese's condition worsened thereafter "to the point where she could not walk from house to mailbox." R. at 90. Dr. Herskowitz also indicated in the report that Agnese could not drive or travel anywhere without company, that she was able to function "only in the house," and that she was capable of enjoying social visits only "in [a] safe area with safe people." R. at 90-92. In a second report, dated September 14, 1992, Dr. Herskowitz stated that Agnese was "unable to sustain gainful employment due to her severe panic disorder with agoraphobia." R. at 117. In a letter to Agnese's attorney, dated January 11, 1994, Dr. Herskowitz indicated that Agnese was still under his care. R. at 156.

 A letter dated August 7, 1992 indicates that Dr. Feinberg's patient files are not available. R. at 113. Dr. Feinberg is deceased.

 Ms. Carlson, the psychotherapist, indicated that she had treated Agnese weekly from Autumn 1977 to Autumn 1982. R. at 95, 114. Ms. Carlson diagnosed Agnese's condition as agitated depression, anxiety, and extreme agoraphobia. R. at 95, 114. She indicated that during the period of treatment Agnese was "basically confined to her home" and was unable to travel alone. Ms. Carlson stated that the treatment ended because Agnese's husband could no longer drive her to the office and Agnese was incapable of undertaking the trip, which involved a train ride and a two-block walk, without her husband's assistance. R. at 114. It was Carlson's opinion that Agnese was "totally disabled from all work" during the period she treated her. R. at 114.

 Other medical evidence includes the treatment notes of Dr. Philip Riggio, who saw Agnese as her general practitioner from February 1981 to July 1992. In her first visit to Dr. Riggio, Agnese complained of chest pain and tightness, and indicated that she had been undergoing psychotherapy for "several years" for a panic disorder. R. at 102. Dr. Riggio's chart shows no further discussion with Agnese about panic attacks until February 1987, at which time Dr. Riggio prescribed Xanax. R. at 100.

 The record includes testimony from lay witnesses as well. By declaration dated March 10, 1993, Marie Evans testified that she had known Agnese as a neighbor and a friend since mid 1972, that she was with Agnese in October 1972 when Agnese suffered her first panic attack, and that since that time Agnese has suffered attacks on a regular basis and has been "unable to do basic daily activities." R. at 138-139. Agnese's husband, Gennaro Agnese, testified at the hearing before the ALJ that he received a "frantic" telephone call from a neighbor in Fall 1972 and that the neighbor told him that his wife "had collapsed." R. at 225. After that day, Mr. Agnese testified, "I didn't know what to expect [from her] . . . . She wasn't functioning the way she did [before] . . . ." R. at 228.

 The record indicates that Agnese has worked during three periods of time. From 1960 to 1968, she performed secretarial work for three separate employers. From September 1990 to April 6, 1991, she worked twenty hours a week in a law office as an assistant to a secretary. Agnese indicated that she left the latter job because her "employer hired someone with more legal experience." R. at 82. The secretary who hired her stated by declaration that Agnese was fired, and was "unable to concentrate to perform even the most simple tasks." R. at 119. The secretary added, "I would have to explain things 20 times and she still ...


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