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VALOY v. BARNHART

March 9, 2004.

FRANCISCA VALOY, Plaintiff, -against- JO ANNE BARNHART, Commissioner of Social Security, Defendant


The opinion of the court was delivered by: HAROLD BAER, JR., District Judge

OPINION & ORDER

Plaintiff Francisca Valoy (hereinafter "plaintiff' or "Valoy") brings this action pursuant to § 205(g) of the Social Security Act ("the Act"), 42 U.S.C § 205(g), challenging the final determination of the Commissioner of Social Security ("Commissioner" or "defendant"), denying Valoy Supplemental Security Income ("SSI"). Valoy and the Commissioner cross-' move for judgment on the pleadings pursuant to Federal Rule of Civil Procedure ("Fed, R. Civ. P.") 12(c). For the foregoing reasons, plaintiff's motion to remand for further proceedings is granted and defendant's cross-motion for judgment on the pleadings, affirming the Commissioner's decision, is consequently denied.

I. BACKGROUND

 A. Factual Background and Medical Evidence/Testimony

 1. Plaintiff's Background and Subjective Testimony

  Valoy was born in the Dominican Republic on December 31, 1958. While in the Dominican Republic, Valoy was educated through the Seventh grade. In 1992, she moved from the Dominican Republic to the United States. She "once started to go to school to learn English, but [] had to leave it because [she] couldn't learn anything." Transcript ("Tr.") at 45 (11/7/00 Hearing). While her education in the Dominican Republic has enabled her to read and write Spanish "a little bit", she only knows "certain little things, but not very much" with respect to English. Tr. at 35, 37, 67.

  Valoy has four children — the eldest two reside in the Dominican Republic and the younger two (ages nine and six) live with her in New York. Tr. at 36. Valoy receives assistance Page 2 from her neighbor in caring for her children and performing household chores, but does some chores herself, such as the laundry. Tr. at 44. Valoy's neighbor traveled with her to the hearing on the subway. Valoy testified that she did not socialize very much, and even when she did, only spent time with her neighbors. Valoy explained that she is "[a]lmost always" "feeling [so] bad [that she doesn't] want anything, nothing nothing." Tr. at 46.

  Valoy's last occupation was as a hair stylist at a beauty parlor in the Dominican Republic. She stopped working because of skin complications (exzema) and arthritis in her hands. Tr. at 38. Valoy also complains of lost strength, cramps, and rigidity in her hands, which sometimes causes her to drop objects. Tr. at 41. Valoy had medication for her hand conditions. Valoy also experienced stomach pain, which physicians diagnosed as related to menopause. Despite these physical conditions, Valoy "emphasized that her main reasons for not working were psychological, including forgetfulness, nervousness, and Mots of anxiety." Plaintiff's Memorandum ("Pl. Mem.") at 7, citing Tr. at 38. Valoy testified that she was often "very sad" and cried frequently. Tr. at 39. Because her appetite has suffered, she has lost seven pounds in the past year. Tr. at 35-36. Valoy also complained of difficulty sleeping and hallucinations of people calling her. Tr. at 40.

  Valoy testified that she could walk approximately twenty-five blocks "more or less but very slowly . . . I stop and get tired, I can stop and continue." Tr. at 43. She also testified that she could only stand for half an hour, after which time her legs would swell. She estimated that she could lift or carry less than ten pounds. Tr. at 44. Sitting, however, she testified was not a problem for her. Tr. at 44.

 2. Evidence From Treating Physicians

 a. Dr. Bernado Martinez

  Valoy has been receiving treatment from Dr. Bernado Martinez ("Martinez") at the Upper Manhattan Mental Health Center since February 23, 1998, on which day she presented with complaints of depression, nervousness, anxiety, insomnia, irritability, and anhedonia. Tr. at 175. After examining Valoy, Martinez reported that she was tearful, had constricted affect, depressed mood, anxiety, "simple" auditory hallucinations, poor concentration, and limited insight and judgment. Tr. at 175-77. Martinez diagnosed Valoy as having an adjustment disorder with mixed emotion, a generalized anxiety disorder, and a Global Assessment of Page 3 Functioning ("GAP") score in the range of 60-70*fn1. Martinez suggested psychotherapy and prescribe1d Serzone for her depression and Vistaril for her anxiety. Tr. at 177.

  Over a year later, while Valoy was in psychotherapy, Martinez diagnosed her with general anxiety disorder due to her anxiety, mild depression, auditory hallucinations, and limited insight and judgment Tr. at 178-79. When Martinez examined Valoy in September 1999, he noted her continued depression, and renewed her medications. Tr. at 190. Throughout the fall and winter of 1999, Valoy reported depression, lack of appetite, constant worrying, anxiety, hallucinations, and poor sleep. Tr. at 190-93. In January 2000, Martinez again renewed Valoy's medication, and at some time thereafter, also prescribed Paxil, a drug indicated for the treatment of major depression, obsessive-compulsive disorder, panic disorder, social anxiety disorder, generalized anxiety disorder, and post-traumatic stress disorder. Pl. Mem. at 4.

 b. M. Perez, C.S.W.

  As per Martinez' suggestion, Valoy began psychotherapy with M. Perez, C.S.W. ("Perez") on December 15, 1998. On December 22, 1998, Perez noted that Valoy was "unstable, apprehensive and [in] low sprits and was "constantly crying." Tr. at 180. When Valoy complained of pain and auditory hallucinations on January 26, 1999, Perez reported that she "appeared nervous and somewhat depressed." Tr. at 181. On March 16, 1999, Valoy complained of poor sleep and a reduced appetite, which resulted in her losing ten pounds. Tr. at 182. Perez noted on March 30, 1999 that Valoy continued to be apprehensive and had diminished self-esteem due to hair loss. Tr. at 183. Valoy continued to complain of sleep and appetite problems on April 13, 1999, and Perez noted depression on April 27, 1999. Tr. at 184.

  In May 1999, Perez found Valoy to be "very nervous and apprehensive." Tr. at 185. While Valoy seemed better in the beginning of June, by the end of the month, she reported feeling "overwhelmed and depressed." Tr. at 186. For the remainder of June and July, Valoy reported depression, cessation of energy, and frequent crying. Tr. at 187. At this time, Perez treated Valoy for an adjustment disorder with mixed emotions. Her treatment consisted of continued psychotherapy with regular doses of Serzone and Zyprexa, a medication utilized for the treatment of schizophrenia. ...


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