The opinion of the court was delivered by: Gershon, District Judge.
Plaintiff Paula J. Moscatiello brings this action under Section 205(g)
of the Social Security 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. This matter was previously remanded
for further administrative proceedings pursuant to stipulation of the
parties, so ordered by this Court on April 3, 1997. The Commissioner now
moves for judgment on the pleadings. Plaintiff opposes the motion and
requests that the decision of the Commissioner be reversed.
Plaintiff last worked as a receptionist in a doctor's office in 1986.
She claims to have been disabled since that time. Her application for
disability insurance benefits was filed on December 20, 1993. The parties
agree that her insured status ended on June 30, 1991. On April 22, 1995,
Administrative Law Judge ("ALJ") Norman Silverman denied her request for
benefits following a hearing at which plaintiff and her husband, Vincent
Moscatiello, testified. ALJ Silverman found that, although plaintiff's
physical and mental impairments might be disabling at the time of his
determination, the evidence did not establish that she was disabled as of
June 30 1991; instead, ALJ Silverman found, plaintiff had the ability to
return to her past relevant work as a doctor's receptionist and to
perform a full range of sedentary work as of that date. (R. 30-33). ALJ
Silverman also found, in concluding that plaintiff was not disabled:
plaintiffs "testimony is exaggerated, not credible and not supported by
the evidence regarding the impairments alleged" (R. 30); "review of the
medical evidence alone does establish the existence of a `severe'
impairment" (R. 31); "there is limited medical documentation to support
the presence of any significant physical or mental impairment prior to
the date she was last insured" (R. 31). The Appeals Council adopted ALJ
Silverman's decision on September 3, 1996 (R. 3-4).
On remand, the Appeals Council ordered a de novo hearing and directed
the ALJ to further consider plaintiffs residual functional capacity, to
evaluate plaintiff's subjective complaints, including pain, with specific
reference to the factors specified in certain regulations and agency
rulings, and to "issue a new decision, which will set forth a rationale
in support of all findings and conclusions reached therein." (R.
421-22). Plaintiff testified at the new hearing before a different ALJ,
Herbert S. Forsmith. Plaintiff's husband did not testify again but he
submitted an affidavit. On March 24, 1998, ALJ Forsmith denied
plaintiff's request for benefits, finding that, as of June 30, 1991,
plaintiff did not have a severe impairment and was not significantly
limited in her ability to perform workrelated activities, including her
past work as a receptionist, by either her physical or mental conditions.
(R. 329-33). ALJ Forsmith found that plaintiffs "subjective complaints
prior to June 30, 1991 are not credible considering the objective medical
evidence, the conservative medical treatment of the claimant, and the
claimant's testimony." (R. 331). The ALJ noted that laboratciry and
diagnostic studies during this earlier time period "were substantially
within normal limits" and plaintiff "did not have severe restrictions on
any persistent basis." (R. 331).
On April 7, 1999, the Appeals Council adopted ALJ Forsmith's decision,
finding that it was supported by the record, and rejected plaintiff's
argument that the ALJ had failed to consider her psychiatric impairment.
(R. 252-53). The Appeals Council agreed that the record did not show that
plaintiff had an impairment that significantly affected work-related
activities before June 30, 1991, and pointed to the results of
examinations and tests that "were consistently normal or near-normal"
except for fibrocystic changes in both breasts that were benign, as well
as the admission of plaintiff's spouse that plaintiff's mental problems
were not diagnosed or treated before November of 1993, over two years
after the period in question. The Appeals Council noted that plaintiff's
subsequent medical history is relevant only to the extent that it sheds
light on her condition during the earlier period.
Ms. Moscatiello has been represented at all stages of the proceedings
by her current attorney, Samuel H. Levy, Esq.
B. Plaintiff's Claims and Nonmedical Testimony
In her original application for disability benefits at the end of
1993, Ms. Moscatiello (now 61 years old), reported that she had become
unable to work because of difficulty in concentrating, depression, a
compulsion to repeat the same tasks over and over, fear of making
mistakes, insomnia, and neck and back pains. (R. 81). She listed her
disabling conditions as hepatitis C, depression, obsessive compulsive
disorder (OCD), hypoglycemia, fibrocystic disease, osteoarthritis,
(inflammation of sacs in the wall of the colon) and headaches (R. 81). At
the initial hearing, plaintiff testified that she had anxiety, panic,
depression, OCD, inability to concentrate, claustrophobia, daily
headaches, loss of sex drive, swelling of the eyes, tinnitus (constant
ringing) in her ears, difficulty hearing in her left ear, hiatal hernia,
hepatitis C, diverticulosis, shaking of the hands, calcification in her
right shoulder, a spur on her foot, leg cramps, swelling in her right
ankle, problems with her cervical spine and back vertebrae so that she
had difficulty turning her neck and suffered back pains, lesions in her
mouth, an unspecified problem with her nose, an irregular heartbeat, and
low blood sugar. (R. 44-48).
Plaintiff attended high school, but did not receive a diploma. (R.42).
She had worked as a receptionist and clerk in a doctor's office for 12
years before she stopped working in 1986. Asked why she stopped working,
plaintiff replied, "I worked for a doctor, and I just left, and then he
retired." (R. 42).*fn1 She is married and lives with her husband, who
does most of the housework and errands, according to both her testimony
and that of her husband at the first hearing. (R. 43-44, 49-50).
Plaintiff testified that she had become afraid to travel, could not take
the pressure of being told what to do, and was obsessed that everything
had to be done exactly in a certain way. (R. 48). Plaintiff's husband,
Vincent Moscatiello, in addition to testifying, also submitted an
affidavit after the first hearing, which stated that plaintiff's mental
condition had deteriorated over the years from when they were married in
1970. She became irritable, could not remember or concentrate, was afraid
to travel alone, could not take care of personal or household chores, and
was depressed and obsessive. Mr. Moscatiello opined that plaintiff's OCD
began in the late 1970's but it was first diagnosed as such by Dr. Hahn,
plaintiff's treating psychiatrist (R. 409). Medical records establish that
Dr. Hahn first saw plaintiff on November 23, 1993 (R. 149). Plaintiff's
counsel argued at the first hearing, and in his written submission to the
Appeals Council, that plaintiff was disabled from gainful employment by
the combination of mental and physical ailments that plaintiff described
and that were reflected in medical records, and other conditions
reflected in the records that plaintiff had not mentioned (including
bursitis, pancreatitis (inflammation of the pancreas), gallstones, and
cholecystectomy (removal of the gall bladder)). (R. 11-14, 51-52).
At the second hearing, plaintiff's counsel stated that plaintiff had
several disabilities, but her "primary one is the obsessive compulsive
disorder." (R. 348). Ms. Moscatiello testified at the second hearing that
she stopped working because she was overwhelmed" and could no longer cope
with her anxiety and compulsion that everything had to be "perfect" (R.
350-51). Plaintiff explained that her condition had worsened over the
years until she could no longer function. As an example, before she
stopped working, she washed her hands constantly because she felt that
they were dirty (R. 351). Plaintiff testified that she had told her
internist, Dr. Atallah, of her difficulties in 1986. Dr. Atallah wanted
to prescribe medication, but plaintiff was afraid to take it because of
sensitivity to medication. Dr. Atallah did not recommend that plaintiff
see a psychiatrist; that recommendation was first made by plaintiff's
surgeon, Dr. Martuscello, according to plaintiff's testimony, resulting
in plaintiff's first consultation with Dr. Hahn, which plaintiff believed
was in 1992. (R. 353-55). Ms. Moscatiello also listed her physical
ailments at the second hearing, including: hepatitis C, fibrocystic
disease, diverticulitis, pancreatitis, hiatal hernia,
colitis, tinnitus, difficulty hearing in the left ear, migraine
headaches, bursitis in the shoulder, arthritis in the thumbs, problems in
the lumbar spine and cervical spine, heart murmur, mild hypoglycemia, and
problems with her feet and toes (R. 356-57, 363-70). Plaintiff at first
acknowledged that her physical conditions would not have prevented her
from working if she did not have the mental and emotional difficulties,
but then maintained that at least some of her physical ailments
contributed to her inability to work. (R. 356, 363-66). Plaintiff
acknowledged under questioning by the ALJ that a number of her severe
physical ailments had developed in the past few years, including
pancreatitis, gall bladder and stomach problems, all in approximately
1995. (R. 367-69).
Plaintiff's husband submitted a second affidavit dated shortly after
the second hearing. (R. 323-24). Mr. Moscatiello states that he noticed
that his wife had emotional problems when she stopped working at the end
of 1986, with symptoms that would be diagnosed by Dr. Hahn as OCD on
November 23, 1993. Between the time plaintiff stopped working and the
time she saw Dr. Hahn, Mr. Moscatiello observed symptoms of shortness of
breath, dizziness, trembling, sweating, nausea, hot flashes, chest pains
and fear of dying. Plaintiff constantly washed her hands, displayed odd
behavior while walking, could not remain in an enclosed area such as an
automobile, and was forgetful and unable to concentrate. Before plaintiff
stopped working, Mr. Moscatiello noticed that she was (and still is)
constantly depressed, and insisted on everything being done perfectly
Mr. Moscatiello concluded that he knew plaintiff should have seen a
psychiatrist in 1986, "but I could not accept the fact that she had mental
problems." (R. 324).
In his request for Appeals Council review of the ALJ's decision after
remand (R. 254-62), plaintiff's counsel submitted a list of 22 physical
and psychological ailments plaintiff suffered, but emphasized plaintiff's
mental and emotional condition both by itself and considered in
conjunction with the physical illnesses. Before this Court, counsel
emphasizes plaintiff's hepatitis C, OCD and anxiety disorders, but also
submits the same list of 22 ...