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April 15, 1998


The opinion of the court was delivered by: LARIMER



 This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security that plaintiff was not disabled, and therefore, was not entitled to disability benefits. This Court finds that the Commissioner's decision was not supported by substantial evidence and accordingly grants plaintiff's motion for summary judgment.


 Plaintiff Robin Reynolds ("Reynolds") was born on January 27, 1956 and is presently forty-two years old. (T. 121). *fn1" On June 23, 1993, Reynolds applied for Social Security disability and Supplemental Security Income ("SSI") benefits. (T. 121-32, 159-62). She claimed that she was unable to work since June 10, 1993 due to "lower back injury and long history of depression/mental instability." (T. 180). The Social Security Administration denied her applications initially and upon reconsideration. Plaintiff requested a hearing before an Administrative Law Judge which was held on August 12, 1994.

 On October 6, 1994, the judge issued a decision in which he found that plaintiff was not entitled to disability benefits. (T. 42-56). On August 4, 1995, Social Security's Appeals Council vacated the denial of benefits and remanded the matter for a further hearing. (T. 36-39). A second hearing was held before Administrative Law Judge Russell, ("ALJ") who issued a decision on July 18, 1996 and again denied benefits. (T. 12-26). On May 20, 1997, the Appeals Council notified plaintiff that it refused to review the ALJ's decision. (T. 5-7). The ALJ's decision thus became the Commissioner's final decision, and plaintiff commenced this action. Presently before the Court are the plaintiff's motion for summary judgment pursuant to Federal Rules of Civil Procedure 56, and defendant's motion for remand pursuant to the fourth sentence of 42 U.S.C. § 405(g).


 Reynolds has a long history of treatment for mental conditions. The record before the Court begins with an April 1, 1987 "Intake Evaluation" from Family Services of Chemung County which mentioned previous mental health treatments beginning at age nine. (T. 209-11). The report concluded with a diagnosis of adjustment disorder with depressed mood. (T. 211).

 Reynolds underwent regular individual therapy visits to Family Services until December 1988. (T. 271). Between 1989 and 1991 Reynolds attended community college and worked as an English tutor. In January 1990, Reynolds renewed therapy at Family Services where therapists made an initial diagnosis of cyclothymia. *fn2" (T. 270-73).

 On June 17, 1991, Reynolds was evaluated by Dr. Manzano at Family Services who gave a diagnostic impression which included possible major affective disorder, depressive type, possible dysthymic disorder, and a borderline personality disorder. (T. 275).

 In July 1991, Dr. Manzano completed an employment form in which he indicated that Reynolds would be unable to work due to cyclothymia. (T. 299). Additional reports of inability to work followed from both Dr. Manzano and Dr. Deines, who also worked at Family Services. (T. 300-03).

 Despite these recommendations, Reynolds actually went to work as a customer service representative at Artistic Greetings in December 1992. (T. 174). Reynolds found that she had difficulty handling this employment and stopped working in June 1993, with a note from Dr. Deines which stated that "Robin is unable to work for the next month for medical reasons." (T. 301). In a report dated June 30, 1993, Dr. Deines indicated that due to cyclothymia, Reynolds was not capable of working in any capacity at this time." (T. 302). A similar report from Family Services dated January 26, 1994 reported incapacity due to bipolar disorder and cyclothymia. (T. 303).

 Reynolds continued to see Dr. Deines and a therapist over the next several months, but missed many of her scheduled appointments. (T. 229). On November 4, 1993, Reynolds was hospitalized at the Behavioral Sciences Unit ("BSU") of St. Joseph's hospital in Elmira, where she stayed until December 9. (T. 280-92). Dr. McGurk at BSU diagnosed Reynolds with bipolar disorder and a borderline personality disorder. (T. 313). In September 1994, Reynolds was again hospitalized at St Joseph's, where she stayed for three weeks and was diagnosed with bipolar disorder. (T. 314-18). In a discharge summary, Dr. Bezirganian described conversations in which they discussed Reynolds' unwillingness to work. (T. 315). Dr. Bezirganian told Reynolds that her condition was not severe enough to prevent her from working. Id. He concluded his report with a fair prognosis if she continued treatment, but poor to fair without treatment, "with likely continued poor function." Id.

 In June of 1995, Reynolds was treated at the Coming Day Treatment Program of the Elmira Psychiatric Center. (T. 339, 345). In November 1995, a psychiatrist at that program noted a diagnosis of bipolar disorder and stated that Reynolds was not employable ...

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