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MINSKY v. APFEL

September 17, 1999

NADINE M. MINSKY, PLAINTIFF
v.
KENNETH S. APFEL, ACTING COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

  MEMORANDUM DECISION AND ORDER

The plaintiff, Nadine M. Minsky ("Minsky" or the "plaintiff"), commenced this action pursuant to the Social Security Act, 42 U.S.C. § 405(g) (the "Act"), seeking review of a final administrative determination of the Commissioner of the Social Security Administration (the "Commission"), denying her application for Social Security Disability Insurance Benefits. At issue are the parties' cross-motions for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c).

This case is notable in that it involves the ALJ's rejection of a finding of disability by all four of Minsky's treating physicians. With regard to three of the four treating doctors, the ALJ rejected their opinions, in large measure, on his perception that these licensed physicians practiced "outside the mainstream of medicine" and used unconventional methods of treatment. The ALJ rejected the opinion of the fourth treating physician on the theory that his views were "unsupported" and "contradicted" by his contemporaneous notes, even though this physician clearly operated "within the mainstream" of medicine, a fact evidenced by his impressive résumé: a Clinical Professor of Medicine at New York University School of Medicine; the Medical Director at Lenox Hill Hospital in Manhattan; the Chief of Rheumatology at Lenox Hill Hospital; and formerly the Chief of Lupus Erythematosus and Related Diseases at Bellevue Hospital in Manhattan. Surprisingly, the Commissioner never had the plaintiff examined by a Social Security consulting physician, and therefore there were no contrary opinions offered from a single examining doctor.

I. BACKGROUND

A. Procedural History

On October 28, 1994, Minsky filed an application for Social Security Disability Insurance benefits. Her application was denied, both initially and on reconsideration. Minsky's request for an administrative hearing was granted. The hearing was held on June 5, 1996 before an Administrative Law Judge (the "ALJ"). The plaintiff and her attorney attended the hearing, at which a medical advisor and a vocational expert testified on behalf of the Commissioner. The ALJ found that the plaintiff was not disabled because she was able to perform light work subject to certain non-exertional limitations prior to December 31, 1994, the date when her insured status expired. On February 5, 1998, the Appeals Council denied the plaintiff's request for review. This action followed.

The sole issue before the Court is the Commissioner's finding that Minsky was not disabled between May 15, 1994, her alleged onset date, through December 31, 1994, when her insured status expired. Although Minsky originally stated that her impairment was lupus, at the hearing, Minsky and her attorney claimed that her sole medically-determinable impairment was mixed connective tissue disease. Minsky and her counsel conceded that she did not ever meet the diagnostic criteria for any particular specific connective tissue disease, such as lupus. Connective tissue disease is a group of diseases including rheumatoid arthritis, systemic lupus erythematosus, rheumatic fever, scleroderma and others, that are sometimes referred to as rheumatic diseases. Mixed connective tissue disease is a syndrome with overlapping clinical features of systemic lupus erythematosus, scleroderma, polymyositis, and Raynaud's phenomenon.

The plaintiff states in an affirmation that her condition went into remission in March 1997 and she was able to work after that time. Therefore, the plaintiff seeks only a brief and closed period of disability.

B. The Plaintiff's Testimony at the Hearing

Minsky testified that she was 47 years old at the time of the hearing held on June 5, 1996.

1. Minsky's Testimony Regarding Her Work History

Between 1980 and 1987, Minsky, who has three years of college education, worked for Dunn & Bradstreet doing outside sales of credit contracts. From 1988 to 1993, she operated a small show and boarding kennel. She stopped when she sold her home, where the kennel was located. Beginning in February 1993, Minsky began working at what eventually became a full-care animal facility. In October 1993, she became a partner in the business with its original owner. She used to work about 60 hours a week. The business operated 24 hours a day, seven days a week, and required that Minsky live on the premises. Minsky testified that she last worked full-time there in May 1994, at or about the time of her alleged onset date.

2. Minsky's Testimony Regarding Her Medical Condition

Minsky testified that she first became sick in May 1994. She felt exhausted, had a rash on her face, and could not concentrate. She experienced pain in her back and muscles. She had no energy, and was short of breath all the time, even without exertion. In addition, she developed a rash on her face, and her eyes felt tired Her lower back started to hurt, and she noticed swelling of her ankles, hands, and the side and back of her neck, along with headaches, The plaintiff testified that her level of pain varied, with the worst being in her back at a level of "more than moderate" 50% of the time. She also experienced problems with balance, and fell down approximately 10 times. In addition, she experienced hair loss, frequent and severe colds, coughs, and sore throats. She had difficulty sleeping, and was only able to do so with the aid of medication. Even with medication, however, she was only able to sleep for a few hours.

Minsky's usual weight before her illness was 130 pounds. After she got sick, her weight at one point increased to 218 pounds. At the hearing, she weighed 190 pounds.

According to the plaintiff, after May 1994, on some days she worked an hour or two a day, some days she spent in bed, and approximately six days a months she would have a "great" day and be able to work three to four hours. Her symptoms gradually worsened.

According to the plaintiff, she was at her worst from May 1994 to October 1994. From January 1995 through August 1995, she was in bed most of the time, and she felt better in September 1995 through October 1995, but in November 1995 again felt worse, although not as badly as she felt the prior year. Minksy testified that on some days, she could not get out of bed because her vision would "be blurry and my back would be killing me and I just, I just couldn't function. And, I'd sleep the entire day."

Minsky told the ALJ that on good days, she can sit for a half an hour before her back starts to hurt and she becomes stiff on trying to stand. On bad days, she cannot do any sitting at all. She finds it difficult to hold a pen because she cannot grasp, and at best can do so only for 10 minutes. She can lift about 5 or 6 pounds, at most. During periods of slight improvement, Minsky could walk a half a block to the store. At best, she could concentrate on a computer for 10 to 15 minutes; at worst, she could not concentrate at all. On a good day, Minsky could stand for 10 minutes, but on a bad day, only for 30 seconds. On the bad days, she usually stayed in bed. Most of her days were spent laying down.

At the time of the hearing, Minsky and her husband had moved in with her mother. The plaintiff's mother, son or husband did all of the cleaning and shopping while she was ill. Tasks such as bathing, dressing, and washing her hair were all difficult, and she occasionally did not do them. She had no social activities. She had to give up dog breeding, because she could no longer pick up the animals. She could not sit long enough to go to a movie.

Psychologically, Minsky testified that she often cries; she cried during the hearing. Stress made her pain worse; as did the weather.

C. The Medical Evidence Presented at the Hearing

1. Dr. Jesse Stoff

On July 25, 1994, Dr. Jesse Stoff, M.D., evaluated Minsky. During the evaluation, Minsky described a history of an adverse reaction to dental implants and viral infections. She tested positive for Coxcackie B. virus, Epstein-Barr virus and cytomegalovirus, and tested negative for lupus. Dr. Stoff concluded that Minsky suffered from mixed connective tissue disease. Following the initial evaluation, the plaintiff primarily was treated by Dr. Stoff by telephone.

In a report dated November 30, 1994, Dr. Stoff stated that Minsky "complains of severe fatigue, migratory myalgias and arthralgias, night sweats, recurrent lowgrade fevers, insomnia, and dyslogia with a secondary reactive depression to her chronic illness which has rendered her totally disabled." He further noted that the "symptoms that she suffers with i.e. the severe fatigue, muscle weakness, myalgias, arthralgias, insomnia, and dyslogia have rendered her totally disabled in that she is usually totally bed bound unable to complete even minimal activities of daily living and relying upon the help of friends and family in order to accomplish her daily activities." Her "blood tests indicate a systemic response to her autoimmune disease." In Dr. Stoff's view, her "illness is likely to leave her permanently disabled or worse it if does not stop and reverse soon."

On December 7, 1994, the plaintiff told Dr. Stoff over the telephone that she was "doing well" and her back pain was gone. However, her hands and feet were still swollen.

In January 1995, after Minsky's insured status expired, Minsky spoke with Dr. Stoff four times because she was having trouble obtaining the intravenous treatments he prescribed. That same month, Dr. Stoff reported that he made a diagnosis of autoimmune syndrome and lupus. Her symptoms included severe fatigue, insomnia, myalgias, arthralgias, mallar rash, dyslogia, sore throats, swollen glands, muscle weakness, hypotoxia, headaches, night sweats, and blurred vision. He prescribed Prednisone, DHEA IV nutrients/amino acid supplements, and nutrient supplements. Clinical findings included lupus mallar rash, recurrent edema, recurrent joint symptoms and one episode of kidney failure. He reported that her fatigue was a disability, and that the condition was exacerbated by stress. Once fatigue began, she generally was in bed for several days. She was limited to lifting 2 to 4 pounds; her ability to stand and walk was less than 2 hours a day; she was able to sit less than 6 hours a day; and her pushing and pulling was limited, due to severe fatigue, myalgias, arthralgias, and muscle weakness.

Thereafter, Minsky spoke with Dr. Stoff approximately monthly, until an office visit in September 1995. During the September 1995 examination, Dr. Stoff's contemporaneous notes state that Minsky was doing "relatively good," and was "in remission" to the point of walking and sleeping well, having "great" energy, shopping, "being busy, managing the business," and looking "great!!"

Toward the end of the year, on December 15, 1995, Dr. Stoff reported that Minsky continued to suffer from and be debilitated by severe fatigue, multiple migratory myalgia and arthralgia, night sweats, recurrent low-grade fevers, insomnia, dyslogia with depression. Also, she suffered an episode of kidney failure which responded to diuretic therapy and intravenous medications. At that time, in Dr. Stoff's opinion, Minsky was "totally disabled," and was "often house and bed bound due to severe insomnia, fatigue, myalgia, arthralgias and dyslogia. She required help to complete her basic ADL [activities of daily living]." While the doctor stated that "she continues to try to work as much as she can in order to maintain her business . . I do not believe it is in her best interest physically to work part time as she does . . . I know, from talking with her husband and close friends, that there are many days where in she is unable to complete even basic minimal activities of daily living and must rely on their help in order to do so. Her disease process is severe." Further, the doctor opined that her "pronosis for recovery is guarded because of the multiplicity of organs and systems involv[ed]."

The following year, in May 1996, Dr. Stoff again reported that the plaintiff was under his care for progressive mixed connective tissue disease, which rendered her disabled.

2. Dr. Popylansky

Minsky was treated on a weekly basis by Dr. Uluis Popylansky, M.D., from October 28, 1994 through December 1994. In a Residual Functional Capacity Assessment Report dated February 6, 1995, Dr. Popylansky's diagnosis was mixed connective tissue disorder and lupus. He noted that her symptoms included fatigue, headaches (cephalagia), muscle aches (myalgia), skin rash, insomnia, swollen lymph nodes and recurrent sore throat. Dr. Popylansky's examination revealed that the patient was 5 feet tall and weighed 200 pounds. Dr. Popylansky found no neurological deficits. He found she had limited motion in her upper and lower extremities due to pain and edema. He proscribed Prednisone in tapering doses and non-steroidal anti-inflammatory medication. Dr. Popylansky's Residual Functional Capacity Assessment stated that Minsky could sit up to 6 hours a day, stand and walk less than 2 hours a day, and could not lift or carry any weight. Dr. Popylansky stated that "when exacerbation any movement extremely painful." In his assessment, Minsky was "unable to concentrate," and had "memory impairment." He noted that her fatigue was brought on by minimal exertion and activities of daily living, and she had to rest for several hours once the fatigue began. The plaintiff also suffered from depression, secondary to fatigue.

3. Dr. Ronald Hoffman

Dr. Ronald Hoffman, M.D., provided Minsky with weekly nutritional support treatment between January 1995 and June 1995, immediately following the insured period. In a report dated July 13, 1995, he made a diagnosis of mixed connective tissue disease. He noted that she suffered from fatigue, joint pain and a butterfly rash. Although his physical examination of her was "not significant," Dr. Hoffman stated that her "fatigue limits [her] ability to function in a work setting." Dr. Hoffman was of the opinion that Minsky suffered from decreased focus and concentration; limited understanding and memory; and limited sustained concentration and persistence. He found that her ability to lift and carry was limited to 5 pounds; her ability to stand and/or walk was limited to up to 2 hours a day; her ability to sit was limited to up to 6 hours a day; and she had no limitation on her ability to push and pull.

4. Dr. Thomas Argyros

In his January 1995 report, Dr. Argyros stated, "Minsky notes that she looks as if she has a clear cut case of lupus." His report further states that during the previous year, in April 1994, when she sat for a time she had aching in her knees and it was hard to get up. At that time, her joints were swollen, and she had to be taken off Prednisone because "she could not function." Dr. Argyros observed that Minsky was "emotional and cried a lot." Minsky was experiencing "chest pain and shortness of breath." Testing revealed that the plaintiff's ANA (anti-nuclear antibody), rheumatoid factor and complement levels all were normal. Her C3 level was above normal. Dr. Argyros diagnosed undifferentiated connective tissue disorder. The doctor noted that she was feeling better and did not need systemic treatment.

On February 15, 1995, Minsky reported to Dr. Argyros that she was "ok" except that she was very stiff in the morning. Later that year, in August 1995, Dr. Argyros reported that Minsky had been weaned off the adrenal cortex injections Dr. Stoff ...


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