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CRAVEN v. APFEL

July 12, 1999

HANNAH CRAVEN, PLAINTIFF,
v.
KENNETH APFEL, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

ORDER ADOPTING REPORT AND RECOMMENDATION

Plaintiff Hannah Craven brings this action pursuant to section 205(g) of the Social Security Act, 45 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security denying her disability benefits. Both parties cross-moved for judgement on the pleadings pursuant to Fed.R.Civ.P. 12(c). On May 18, 1999, Magistrate Judge Peck issued a report and recommendation (the "Report"), which recommended that I grant plaintiff's motion to the extent that the case be remanded to the Commissioner for further development of the record, and that the Government's motion be denied. Plaintiff submitted her objections to the Report on May 27, 1999, and on June 14, 1999 the Court received the Government's response to plaintiff's objections.

Having reviewed the Report de novo pursuant to Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1)(C), as well as having considered plaintiff's objections thereto and the defendant's response, I find the Report well-reasoned and thoroughly grounded in the law. I agree with the Magistrate Judge that the Administrative Law Judge ("ALJ") failed to "affirmatively develop the record," see Tejada v. Apfel, 167 P.3d 770, 774-75 (2d Cir. 1999), and that further development is required. Specifically, I agree with the Magistrate Judge that additional medical evidence is necessary and that the ALJ should have questioned the plaintiff more fully on her subjective inability to concentrate or to complete tasks in a timely, work-like manner. (See Report at 28-31). In short, I find that the extent of plaintiff's injuries is not clear from the record and that the ALJ failed to develop the record sufficiently to make an appropriate decision in either direction. See Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999). Accordingly, plaintiff's objection that I should reverse the Commissioner's final decision and remand solely for the calculation of benefits is without merit, as are her other objections.

Having reviewed the Report thoroughly and finding it well reasoned and grounded in law, and finding plaintiff's purported objections to be without merit, it is hereby ORDERED that the report and recommendation is adopted in its entirety.

Plaintiff's motion on the pleadings is therefore granted to the extent it requests a remand to the Commissioner for further fact-finding, and the Commissioner's motion is denied. The Clerk of the Court shall mark this matter as closed and any pending motions denied as moot.

REPORT AND RECOMMENDATION

PECK, United States Magistrate Judge.

Plaintiff Hannah Craven brings this action, pursuant to section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405 (g), challenging the final decision of the Commissioner of Social Security (the "Commissioner") to deny her disability benefits. Both parties have cross-moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c).

For the reasons set forth below, because the Administrative Law Judge failed to adequately develop the medical record, I recommend that the Court grant Craven's motion for judgment on the pleadings to the extent of remanding the case to the Commissioner to further develop the record, and deny the Commissioner's cross-motion.

PROCEDURAL BACKGROUND

On October 12, 1996, Craven filed an application for Social Security Supplemental Security Income ("SSI") benefits. (Administrative Record filed by the Commissioner (hereafter, "R."] 62-64.) Craven's application was denied on November 29, 1996, and again on reconsideration on May 29, 1997. (R. 51-52, 56-57.) At Craven's request (R. 58), a hearing was held before an administrative law judge ("ALJ") on October 8, 1997. (R. 28-48.) On December 29, 1997, the ALJ issued his decision finding that Craven was not disabled. (R. 11-19.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Craven's request for review on August 19, 1998. (R. 5-7.) This action followed.

FACTS

A. The Hearing Before the ALJ

On October 8, 1997, the ALJ held a hearing on Craven's SSI application. (R. 28-48.) Present at the hearing was Craven and her brother Alex Craven, who was there "partly for moral support" and to represent Craven, although he had, no knowledge of Social Security regulations. (R. 30.) Craven waived her right to an attorney at the hearing because she had been unable to find an attorney. (R. 30-31.)

1. Craven's Testimony

At the time of the hearing Craven was 43 years old. (R. 34.) Craven had a Bachelor of Science degree from City University. (R. 34.) Craven claimed that her disability began on December 31, 1992. (R. 31.)

Craven worked at the Marine Midland Bank from 1981 to 1992 and was able to sustain her position because although she could only perform once in a while, she 1980's the bank could afford to overstaff, and she installed "some computer programs that were very useful, it was worth it to them." (R. 41, 77, 83.) However, when the bank transferred Craven to sales, she "didn't do anything for two years," and was fired for not selling bank products and because she did not get along with her supervisor. (R. 36, 41, 77, 83.) The year before Craven was transferred to sales work, she had her own office and could close the door, but she "fell asleep at work quite a bit." (R. 36-37.) She would "often stay [at work] until 9:00 at night . . . just because [she] couldn't get around to getting up. And then [she] would end up working on things that nobody had asked [her] to do that were totally repetitive." (R. 37.)

The year after Craven was fired, in 1993, Craven earned $9,861.41 in severance pay; in 1995 and 1996 she earned $2,469.50 and $4,215.00 respectively from part-time work. (R. 32-33, 67.)

At the time of the hearing, Craven had a part-time job at Hunter College, from which she had been fired when her boss was on vacation, but was rehired when her boss returned. (R. 44-45, 147.) Craven's boss did not give Craven her old job back, but gave Craven the chance to train a new person and was going to give her some projects to work on as long as Craven's "mood stays calm." (R. 45.)*fn1 Craven also was taking courses part-time at Hunter College. (R. 77, 104.)

Craven stated that she wanted to work can work part time, but that with "Manic Bipolar" she has "good days and bad days," so she cannot always work. (R. 33, 38-39.) She has "computer skills," "financial skills," and "economic skills" and felt that without her psychological problems she could be "making a lot of money." (R. 38.) But "some days [her] brain doesn't even work," so she has "to have employers who can't rely, don't rely on [her] every single day of the week." (R. 33.)

Craven's other problem is that she "never know[s] when [she is] going to be hit with things like rage, or disorientation, or [her] brain doesn't go to work." (R. 35.) Craven said that "[m]ost of the time, [she is] a nice tolerant person, and [she] get[s] along well with people. . . . But sometimes something that never bothered [her] before will all of a sudden bother [her] and [she] will blow up." (Id.) She gets "hysterical" and starts "screaming, and yelling, and using bad language, and running around the office telling everybody what a bad person everybody is. . . . And [she] never know[s] when it is going to happen. . . ." (Id.)

Craven stated on her SSI application that her condition keeps her from working because she "need[s] a lot of sleep and time away from people doing nothing in order to function normally for a short time. [She] need[s][a] working environment which does not cause [her] to lave temper tantrums and which lets [her] set [her] own schedule and work isolated. [She] need[s] a computer to avoid making mistakes. [She] also need[s] lots of time away from work to manage tasks such as taking care of [herself]. [She] can't make decisions very well." (R. 73, 90, 97.) She also stated that she "make[s] a huge number of mistakes so it takes [her] a very long time to complete assignments until they are programmed in a computer. [She] blurt[s] out things that are wrong or out of context or mean. If [she] work[s] too many hours [she] start[s] doing things that are repetitive and unnecessary and not what [she's] supposed to be doing." (R. 73.)

When the ALJ asked Craven why she could not work in a secluded setting she replied that she could under certain conditions:

    That's the best thing — is for me to work in a
  secluded section and to make my own hours. In other
  words, to — Sometimes I'm, I can work at 10:00 at
  night. Sometimes I can work at 6:00[in] the morning.
  It really depends. And not to have somebody rely on me
  being at a certain time. . . .
    If, if I could do certain things that let me work
  when I can work, and have my own computer, and have
  privacy, and nobody bothering me, and I don't change
  the system once I set it up, and if they need me on a
  certain day and I'm not able to go in on that certain
  day — I'm not even going to function on that certain
  day, they don't say, "Oh, shoot," you know, "we needed
  you this day." — and if they don't mind me occasionally
  going into, you know —

(R. 39-40.)

At the time of the hearing Graven was taking Valproic Acid and Depakote. (R. 39.) Craven said that when she first took Depakote it made her very lethargic, but alleviated her paranoia to the point where she made friends with a heroin addict in a park and gave him $4,000 which she borrowed through her credit card but does not have money to repay. (R. 41-43.)

When the ALJ asked Craven, "So, you've only been in treatment since February?," Craven answered, "Yeah, I was going to see another doctor before that. But it was a private doctor, and I couldn't afford it. So, I went to Bellevue and — ," at which point the ALJ cut Craven off in mid-sentence. (R. 46.) Craven testified that she had never been hospitalized for psychiatric problems, but that she had psychotherapy as a teenager and again in her twenties, to no avail. (R. 34, 46.)

2. Craven's Brother's Testimony

Although Alex Craven appeared in part as his sister's representative (R. 30), he also made some observations about her illness. Alex Craven stated that his sister "can work well because she's very bright. And there's some cases where people will put up with all kinds of things and make situations right for her. . . . But when it comes to working with other people, or being with other people a great length of time, it becomes too difficult." (R. 33.)

Alex Craven also noticed that the medical reports in his sister's record revealed different, diagnoses in October 1996 than in spring 1997, which was symptomatic of his sister's altered states: "it struck me immediately that this is a very good way of looking at my sister — that you don't know who you're going to get on any given day. And, in fact, that the interviewers here got two different people. . . . And for a job that requires . . . a college degree . . ., this behavior is unacceptable." (R. 38.) Alex Craven also noted that "if she could find a job where somebody said you're a brilliant woman. We'll give you some tasks. And we ...


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