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January 22, 2001


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.

A. Prior Proceedings

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, hernia, diverticulitis (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 ...

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