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MAHONEY v. APFEL

May 3, 1999

JOAN MAHONEY, PLAINTIFF,
v.
KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Gershon, District Judge.

ORDER

Plaintiff Joan Mahoney brings this action pursuant to Section 205(g) of the Social Security Act ("the Act"), 42 U.S.C. § 405(g), to review the final decision of the Commissioner of Social Security denying her application for Disability Insurance Benefits. Plaintiff and defendant each move for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

Plaintiff filed an application for Disability Insurance Benefits on February 17, 1994. Following the denial of her application, an administrative hearing was held on September 18, 1995 before Administrative Law Judge ("ALJ") Sol A. Wieselthier. The ALJ found that plaintiff was able to return to her past relevant work during the time prior to December 31, 1993, the date plaintiff was last insured and, thus, that she was not disabled within the meaning of the Act. The Appeals Council denied plaintiff's request for review on November 7, 1997, and plaintiff commenced this action.

Facts

Plaintiff's Background and Testimony

Plaintiff was represented by counsel at the hearing, on the appeal to the Appeals Council, and is also represented in this action. Plaintiff was born in New York on June 10, 1949, and is 50 years old. She is a high school graduate, and the mother of two grown daughters. She is a widow; her husband died in 1985 while driving an allegedly defective rental car. Prior to the onset of her disability, plaintiff worked in various jobs, including, as a salesperson and, most recently, as a legal secretary. In her work as a legal secretary, her responsibilities consisted primarily of writing reports, taking stenography, typing and using a computer. In a typical day, plaintiff estimated that she sat for eight hours, occasionally lifted objects of up to ten pounds, and occasionally performed some bending and reaching. She worked at her last job from November 1990 until February 1991, and she has not worked since then. Although plaintiff was left a sum of money by her husband, she expended all of her savings and eventually sold her house during the course of pursuing legal actions against the rental car company and, subsequently, against her lawyer for malpractice. Plaintiff presently has no source of income.

Plaintiff was first diagnosed with multiple sclerosis in August 1989, although she thinks in hindsight that she has suffered from certain symptoms for as far back as her childhood. Plaintiff's mother also suffers from multiple sclerosis. Plaintiff reported that her symptoms first began to affect her job performance and work attendance in March 1985. Symptoms, including numbness of the hands, poor bladder control, failing eyesight and fatigue continued to worsen and prompted her to seek medical treatment in 1989, but she continued to work sporadically until her termination from her last job in 1991.

At the hearing before the ALJ, plaintiff emphasized that her symptoms often fluctuate and can become significantly worse when exacerbated by conditions such as stress and warm weather. The most recent exacerbation had occurred around March 1995 when plaintiff was "in very bad shape." Tr. 41.*fn1 Her exacerbations typically last anywhere from one to three weeks. Plaintiff believes that the severity and fluctuation of her limitations prevented her from working on a full-time basis since 1989.

Plaintiff testified that she cannot feel her hands and, without concentration, is unable to sense what she is holding in her hands. She has trouble feeding and dressing herself and is unable to button her clothing. With the initial onset of the symptoms in her hands, plaintiff was unable to write, but she has since devised a way of writing by guiding one hand with the other. She thus similarly struggles to put on her makeup in the mornings. She remains uncoordinated and feels her equilibrium is "off," and that she has to "balance" herself all the time. She is able to walk for approximately a block, although her ability to walk varies and she can become extremely tired. She cannot stand for more than five minutes. Plaintiff does not have difficulty sitting, but does not like to sit for more than an hour at a time without getting up and walking around to prevent her legs from becoming too weak. She is unable to shop, clean, or cook for herself. She has a friend make breakfast for her, and orders out for every other meal. She can carry approximately ten pounds; as with her other symptoms, however, the bad spells significantly curtail her abilities to the point where she feels "like my insides were going to fall out if I carried [a pocketbook]." Tr. 49.

A significant reason why plaintiff feels that she is unable to work is that she has very poor bowel control and suffered two accidents in the past. As a result, plaintiff maintains a three hour routine every morning in which she relies on suppositories to empty completely her bowels and which, through the extreme exertion, leaves her feeling as exhausted as if she had been "lifting a barbell." Tr. 45. She also suffers from frequent urinary tract infections for which she takes Keplex and Arecoline, and she needs to go to the bathroom as often as every thirty minutes.

As for her daily activities, plaintiff testified that she watches some television, walks around the block, goes to the bank, pays bills, writes letters, and goes to the movies about once a month. She explained that doing even everyday tasks, such as waiting in line for ten minutes at the bank, leaves her exhausted. Plaintiff further stated that she spends a great deal of time and energy on her ongoing legal disputes. At the time of the hearing, plaintiff was pursuing a malpractice action against the lawyer who had represented her in an earlier action against the rental car company that had rented the car plaintiff's husband was driving at the time of his death. When questioned by the ALJ, plaintiff revealed that she had suffered significant emotional distress as a result of her circumstances and had sought psychiatric treatment in 1992 at the Karen Horney Clinic.

Medical Evidence

Plaintiff's primary treating physician since 1989 has been Dwight J. Rosenstein, M.D. Dr. Rosenstein, a neurologist, examined plaintiff on August 21, 1989. His report noted complaints of symptoms since about 1984 including urinary hesitancy and periods of numbness in her legs which lasted two to three weeks and caused stiffness and unsteadiness. These symptoms appeared to correspond to periods of stress. Plaintiff reported a significant episode in April 1989 when she experienced numbness in her hands, around her chest and around her thorax. A visit to the North Shore University Hospital Emergency Room at that time revealed a normal CT scan of the head, but follow-up treatment with a neurologist was recommended. Ten days prior to her visit with Dr. Rosenstein, plaintiff experienced a slight spinning sensation, some nausea, difficulty focusing her vision and an unstable gait.

Dr. Rosenstein's general examination of plaintiff revealed nothing remarkable. His detailed neurological examination showed nystagmus on her right lateral gaze but otherwise full extraocular movements. The doctor detected no sensor abnormalities and found her strength to be full. However, there was some incoordination with rapid alternating, fine finger, and finger-to-nose movements, especially with the right hand. Her reflexes were brisk throughout, with some asymmetry and a right extensor plantar response. Her gait was somewhat hesitant, exhibiting a tendency to sway. Dr. Rosenstein concluded that plaintiff had a history and symptoms that suggested "dysfunction of several parts of the nervous system" and the "most likely diagnosis is demyelinating disease, that is, multiple sclerosis." An MRI taken on August 28, 1989 confirmed "extensive demyelination consistent with multiple sclerosis," Tr. 149, and evoked potential testing revealed normal results. Tr. 142-49.

On February 10, 1992, plaintiff talked by phone with Joan Gross, a certified social worker at the Karen Horney Clinic, to seek psychological treatment. Ms. Gross's notes indicate that plaintiff felt overwhelmed by her complicated legal problems, the death of her husband, and her multiple sclerosis. According to Ms. Gross's notes, plaintiff was embroiled in a stressful malpractice suit in which she was alleging sexual harassment and negligence against her former attorney, who was also a family friend. Treatment notes dated April 2, 1992 and covering the period between March 2, 1992 and April 2, 1992 reported that plaintiff had no previous mental health diagnoses or admissions, but that she had a history of trauma which was prompting her to seek treatment. Ms. Gross described plaintiff as feeling isolated, confused, lethargic, and bothered by intrusive thoughts and flashbacks. Plaintiff reported strong feelings of revenge and feeling trapped in her feelings of anger. She felt hopeful that therapy would enable her to focus on her career. Ms. Gross noted that plaintiff's affect was appropriate to her mood, described as anxious, but her insight and judgment were poor. Ms. Gross diagnosed plaintiff as suffering from post traumatic stress disorder. She recommended therapy twice a week. Ms. Gross described as follows the change ...


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