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Murphy v. Astrue

April 10, 2008

THOMAS MURPHY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: John Gleeson, United States District Judge

FOR ONLINE PUBLICATION ONLY

MEMORANDUM AND ORDER

Thomas Murphy brings this action under 42 U.S.C. § 405(g), seeking review of the Commissioner's determination that he is not entitled to disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 423. The parties cross-move for judgment on the pleadings. For the reasons that follow, the Commissioner's motion is denied and Murphy's motion is granted to the extent that the case is remanded to the Commissioner for a new hearing.

BACKGROUND

A. Murphy's Testimony*fn1

Murphy was a 44-year-old police officer at the alleged onset of his disability on March 3, 2003. R. 67, 71, 76, 369. Prior to that date, Murphy began to develop frequent upper respiratory infections and asthma, leading his sergeant to recommend he no longer perform patrol but instead work in an office. Id. at 370-71. Murphy did not want to accept an office job and felt forced into retirement, and testified that he would not have been able to continue his patrol job in any event due to his asthma as well as depression, panic attacks, a sleep disorder, and adverse side effects of his medication. Id. at 373-74. Murphy retired on March 3, 2003. Id. at 370-71.

Murphy indicated that he took care of his own hygiene and personal grooming, cared for his daughter and pets, and did occasional grocery shopping. Id. at 93-97. However, he does not drive, due both to the side effects of his medication and to his fear of having a panic attack while driving, id. at 375, he seldom socializes, and he rarely leaves his house, id. at 96.

B. The Medical Evidence*fn2

Dr. Narendra Patel has been Murphy's treating psychiatrist since 1996, when Murphy first saw him due to a panic disorder. R. at 286. Following the terrorist attacks of September 11, 2001, Murphy began to complain of irritability and "mild panic attacks" twice a day, along with "numbness" and depression due to the deaths of fellow police officers in the attacks. Id. at 325-27.

By July of 2002, he was sleeping better and had no panic attacks, but he had difficulties with his relationship with his wife. Id. at 328. In August of 2002, he was anxious regarding his planned retirement in February of 2003. Id. In January and February of 2003, he again expressed anxiety about his retirement, which was pushed back to April, and he described trying to make plans for his future, including possibly going to law school or performing construction work. Id. at 330.

From April through September of 2003, Murphy told Dr. Patel that he was working 10-12 hours a day in construction six days a week; was building a new home and selling his old home; and was experiencing no panic attacks. Id. at 332-33. In June of 2003 he reported being "cheerful" and sleeping from 9 PM to 7 AM, and Dr. Patel discussed with Murphy the possibility of euphoria being followed by an episode of depression. Id. at 330. In November of 2003, Murphy reported having fallen while riding a dirt bike. Id. at 333. In December of 2003, Dr. Patel observed that Murphy's mood was stable. Id.

On February 23, 2004, Murphy reported that his nephew, who was named after him and was also a police officer, had killed himself, causing Murphy to be sad but not suicidal. Id. at 334. In May of 2004, Murphy reported that for periods of two to three days he felt like isolating himself and had decreased motivation and drive, but that those periods were followed by periods of increased energy and motivation, during which he functioned well. Id. In June of 2004, Dr. Patel discontinued the antidepressant Lamictal due to Murphy's complaints of headaches, and Murphy reported episodic depression but no panic attacks. Id. at 335.

On June 18, 2004, consultative psychologist Dr. Alan Dubro, Ph.D. examined Murphy at the request of the state agency. Id. at 187-91. Dr. Dubro determined that Murphy was fully oriented, with adequate social skills and overall presentation, though he found Murphy had a slouched posture; lethargic behavior; a soft tone of speech, which was mumbled; a depressed and anxious mood; a flat affect; and moderately impaired attention and concentration due to anxiety and depression. Id. at 189. Murphy reported poor sleep with nightmares and anxiety-related shortness of breath, as well as little motivation to complete household tasks. Id. at 188-89. Dr. Dubro diagnosed Murphy with post-traumatic stress disorder due to the September 11, 2001 terrorist attacks. He found Murphy to be capable of understanding and following simple instructions and of learning new tasks to a limited extent, but unable to perform tasks independently (due to lack of motivation), to maintain attention and concentration for more than short periods of time, or to regularly attend a routine or maintain a schedule. Id. at 190. He also noted that Murphy had limited ability to interact appropriately with others, that he was having "significant difficulty dealing with stress," and that he might need assistance managing his money due to concentration difficulties. Id.

In July of 2004, Murphy saw Dr. Patel and complained of a conflict in his relationship with his wife due to her continuing to work full-time, but Murphy reported he had not had any panic attacks, and Dr. ...


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