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Harris v. Astrue

January 20, 2008

DEBORAH A. HARRIS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: John Gleeson, U.S.D.J.

FOR ONLINE PUBLICATION ONLY

MEMORANDUM AND ORDER

JOHN GLEESON, United States District Judge

On September 14, 2005, plaintiff Deborah Harris filed an application for Social Security Disability Insurance Benefits and Supplemental Security Income Benefits. She alleged an inability to work, beginning in March 2002, due to frequent anxiety and panic attacks. Harris's application was denied initially and on reconsideration, and she requested a hearing before an administrative law judge ("ALJ"). Harris appeared without a representative at the June 26, 2007 hearing before ALJ Hazel C. Strauss. On September 21, 2007, the ALJ concluded that Harris was not disabled within the meaning of the Social Security Act ("the Act") because, although she could not return to her past relevant work, she retained the residual functional capacity ("RFC") to perform "simple, repetitive, low stress type work, e.g., not fast paced, not on an assembly line and not dealing with the general public and in a low stress setting." Tr. 17. The Appeals Council denied Harris's request for review on July 18, 2008. The adverse decision thus became the decision of the Commissioner of Social Security ("Commissioner").

Harris seeks review of that decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Based upon the record before the Commissioner, the parties have cross-moved for judgment on the pleadings. I heard oral argument on January 16, 2008.

Because the ALJ failed to fully develop the record, I grant the plaintiff's cross-motion for judgment on the pleadings and deny defendant's motion.

BACKGROUND

A. Harris's Medical History

Harris was born on December 30, 1964. She worked as a secretary, receptionist and office manager for various employers until January 2005. In March 2002, Harris began to suffer from panic and anxiety attacks. She claims that the attacks became progressively more severe, and finally caused her to leave her job in 2005.

Harris received psychotherapeutic counseling from Morna Barsky from May 1993 to January 2001, Tr. 64, but there is no indication that Barsky was contacted by either the Commissioner or Harris in reference to this proceeding. Harris's next psychotherapist was Kyra Sposato, a registered nurse, who treated Harris from August 2001 to September 2003. A subpoena sent to Sposato by the ALJ was returned and marked "unable to forward." Tr. 201-203.*fn1 From November 11, 2004 to July 27, 2005, Harris had weekly psychotherapy sessions with Dr. Gail Cleveland. After being informed by Harris that Cleveland had retired and that she did not know her current address, the SSA made no further attempts to contact Cleveland. Tr. 81.*fn2

On October 27, 2004, Harris began seeing Dr. Mark Gurtovy, a psychiatrist. Gurtovy diagnosed panic disorder with agoraphobia, and a Global Assessment of Functioning (GAF) score of 50, indicating a "serious" impairment to psychological functioning. Tr. 130. He recommended individual psychiatric therapy and increased Harris's doses of Xanax and Lexapro. Over the next eight months of treatment, Harris's complaints varied -- she sometimes asserted that she was feeling better, and sometimes reported that her anxiety and depression were increasing.

On May 16, 2005, Dr. Gurtovy submitted a report for the State Education Department's Office of Vocational and Educational Services for Individuals with Disabilities ("VESID"). In this report, Gurtovy repeated his diagnosis of panic disorder with agoraphobia, and stated that Harris "has been doing better" but was "still having episodes of anxiety and even panic attacks occasionally." Tr. 112. He estimated Harris's "[m]ental health" and "[w]ork ability" as "fair" (on an excellent/good/fair/poor scale), and when asked to describe her "Functional Limitations (response to pressure, supervision, working conditions, etc.)," he stated that Harris "needs to avoid stressful situations. Tr. 113.

Between June 2005 and April 2007, Gurtovy continued to treat Harris on a monthly basis. Harris occasionally reported that she felt okay, and sometimes indicated that her anxiety was increasing. Gurtovy consistently indicated that Harris was not suffering from poor memory or poor concentration. In addition to his anxiety and depression diagnoses, he diagnosed Harris with obsessive compulsive disorder and dysthymic disorder and prescribed Prozac for these conditions.

Dr. Arlene Rupp-Goolnick, a psychologist, examined Harris at the Commissioner's request on October 28, 2005. She opined that Harris was able to follow and understand simple directions, perform simple tasks independently, maintain attention and concentration, make appropriate decisions and relate appropriately to others. Tr. 141. She also noted that Harris had a "varied" ability to maintain a regular schedule due to her anxiety and had difficulty performing complex tasks independently, and that ...


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