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October 22, 1998

FAITH Y. MOFFE, Plaintiff -vs- KENNETH S. APFEL, as Commissioner of the Social Security Administration, Defendant

The opinion of the court was delivered by: SIRAGUSA



 This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security ("Commissioner") that the 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, remands the matter for further administrative proceedings.


 On March 24, 1995, the plaintiff, Faith Moffe ("Moffe"), applied for social security disability benefits, stating that she had been unable to work since September 9, 1994. The Social Security Administration ("SSA") denied her application initially in July of 1995, and upon reconsideration in November of 1995. The plaintiff then requested a hearing before an Administrative Law Judge ("ALJ"), and such hearing was held on April 10, 1996. On August 6, 1996, the ALJ issued a decision in which he found that the plaintiff was not entitled to disability benefits. The plaintiff requested review of the ALJ's decision by the Appeals Council, which on February 13, 1998, issued a decision denying her application. The ALJ's determination thus became the Commissioner's Final Decision, and the plaintiff then commenced this action. Presently before the Court is the plaintiff's motion for summary judgment pursuant to Fed.R.Civ.P. 56 and the defendant's motion for judgment on the pleadings pursuant to Fed.R.Civ.P. § 12(c).


 A. Work History

 Moffe was born on August 4, 1943, and is presently 55 years old. (T. 37). She has a high school education and additionally obtained her certification as a home health aide. (T. 37). From February of 1987 through September 9, 1994, she was, in fact, employed as a home health aide for elderly persons. (T. 115). As such, she had to handle and lift, when necessary, oxygen machines, hoyer lifts, and wheel chairs. (T. 122). She also had to lift and turn bedridden clients who weighed up to 200 pounds. (T. 123). She stopped working on September 9, 1994 because she claims she hurt her right arm, right shoulder, and neck from lifting a patient. (T. 42, 43, 160, 182).

 From 1988 to 1989, Moffe also worked as a mailroom attendant. (T. 115). Her duties required her to lift bags of mail weighing from 50 to 60 pounds and trays of mail weighing from 25 to 30 pounds. (T. 50).

 From June of 1985 to February of 1987, prior to being employed as a home health aide, Moffe worked as a housekeeping supervisor. (T. 115). This job required her to routinely lift items, including jugs of wax and jugs of stripper, weighing from 40 to 50 pounds. (T. 51). Her duties also required her to run a buffer and train others in its use. (T. 42).

 B. Medical Evidence

 Moffe has a history of fibromyalgia and depression. She was treated by Dr. J. Gregory Schultz, an internist, who examined her shortly after the date of her purported injury. (T. 185). Dr. Schultz, in a letter dated February 13, 1995, stated

as you know she sustained an injury to her arm while on the job in September of 1994. This clearly aggravated her underlying depression as the chronic pain from her arm seemed to become unbearable. She has continued to be virtually disabled because of the pain despite attempts at therapy through pain clinic, rheumatologic investigation, etc. We have attempted to treat her depression through changing medications. Initially this would seem successful, but the patient has followed up with counselors and still may not be doing that much better. My overall impression is that the patient's depression does represent a pre-existing condition and has been aggravated significantly by her arm disability. (T. 134).

 Dr. Schultz referred her to Dr. James G. Freeman, with who treated her from July of 1994 to April of 1996. (T. 161,198). Dr. Freeman initially diagnosed Moffe as suffering from fibromyalgia syndrome, although, based on a fairly high ANA "titre," he questioned whether the fibromyalgia was secondary to an underlying connective tissue disease. (T. 161,162). Subsequently, Dr. Freeman concluded that Moffe was also suffering from persistent tendinitis of the right shoulder and fibrositis. (T. 149). Dr. Freeman's physical examination of Moffe showed well moving joints with no signs of synovitis or arthritis. (T. 162). His neurological examination was unremarkable, and neither an arthrogram of the right shoulder nor an MRI of the right upper extremity, which he ordered, revealed any ...

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