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Ginsberg v. Astrue

August 18, 2008


The opinion of the court was delivered by: Irizarry, Dora L., United States District Judge


Plaintiff Joan Ginsberg ("Plaintiff") appeals from the final decision of the Commissioner of the Social Security Administration (the Commissioner") denying Plaintiff disability insurance benefits under the Social Security Act (the "Act"). Plaintiff now moves for judgment on the pleadings, and the Commissioner, in turn, cross-moves for judgment on the pleadings. For the reasons set forth below, the Commissioner's motion is denied, and Plaintiff's motion is granted to the extent that this case is remanded for further proceedings in accordance with the discussion and findings described below.

I. Background

A. Procedural History

Plaintiff applied for disability insurance benefits on January 14, 2002, alleging that she had been disabled since June 11, 2001 due to Chronic Fatigue Syndrome ("CFS"). (A.R.*fn1 17-19.) The application was denied. (A.R. 4-8.) Plaintiff then requested a hearing, which was held before Administrative Law Judge ("ALJ") David Nisnewitz on March 11, 2004. (See A.R. 281-341.) Subsequently, the ALJ held another hearing on November 3, 2004. (See A.R. 244-80.) On April 1, 2005, the ALJ found that Plaintiff was not disabled, as defined by the Act, because she was able to perform her past relevant work, and was therefore not entitled to disability benefits. (A.R. 3F-3Q.) The Appeals Council denied Plaintiff's request for review on June 30, 2005, at which time the ALJ's decision became final. (A.R. 3A-3E.) Plaintiff timely commenced the instant appeal. Although Plaintiff is now represented by counsel, she was not represented by legal counsel for the proceedings below.

B. Facts and Applicable Regulations

1. Plaintiff's Age, Education, and Work Experience

Plaintiff was born on July 11, 1953, and was forty-eight years old at the onset of the alleged period of disability. (A.R. 283, 35.) Plaintiff has attended college and one year of graduate school. (A.R. 283-84.) Since college, Plaintiff has worked as a proofreader, a paralegal, a copy editor, and a production clerk (A.R. 36, 44-50.) At the March 11, 2004 hearing, Amy Leopold, an impartial vocational expert, testified that Plaintiff's past work as a proofreader, paralegal, copy editor, and production clerk were all classified as sedentary, skilled work. (A.R. 338.)

In 1995, Plaintiff began freelancing as a proofreader for the Home Box Office ("HBO") approximately ten hours per week. (A.R. 286-87.) Plaintiff's job at HBO involved seven hours of sitting and one hour of walking for each day she worked, and lifting less than ten pounds. (A.R. 36.) According to Plaintiff, she began to experience symptoms of CFS in May 2001, which caused her to commit errors in her work. (A.R. 35.) Because of these errors, Plaintiff was fired from HBO in August 2003. (A.R. 286-87, 324-25.)

Since she was fired from HBO, Plaintiff has been doing some light proofreading work from home, apparently amounting, on average, to a few hours per week (up to an hour or an hour-and-a-half at a time). (A.R. 285, 292; 212-14.) Her proofreading projects are delivered to her at her home. (A.R. 285.) Some days she cannot work at all because of what she describes as extreme exhaustion, dizzy spells, and muscle aches. (A.R. 292-93.) Plaintiff reports that there are times when she is completely bedridden and, thus, unable to work at all. (A.R. 292-93.)Plaintiff has been collecting unemployment insurance benefits for the loss of her part-time work since August 2003. (A.R. 286.)

2. Plaintiff's Home Life, Symptoms, and Treatment

Plaintiff describes her life prior to the onset of her alleged disability as very active. (A.R. 309.) She used to take dance classes regularly and frequently rode her bicycle. (A.R. 309.) However, Plaintiff states that, since May of 2001, she has experienced extended periods of weakness, dizziness, muscle pain, exhaustion, mental confusion, and lightheadedness, resulting in mobility and concentration problems. (A.R. 35, 312-14, 316-17, 309-10, 292-93.)

Plaintiff lives alone and prepares simple meals for herself, although she orders food for delivery when she feels too weak to cook. (A.R. 52, 54, 284, 308.) She can shop on her own for no more than two or three items, and at times her neighbors assist her with the shopping. (A.R. 308.) Plaintiff cannot carry more than a quart of milk or two-pound hand weights, and she cannot walk further than two-to-three city blocks without rest. (A.R. 311-12, 309-10.) However, she does attempt to take walks outside on occasion when she feels up to it. (A.R. 256.) She is unable to keep her apartment clean and does not vacuum, sweep, or scrub, but she does light housekeeping, laundry when she can, ironing, and she makes her bed and washes dishes when necessary. (A.R. 308-09, 55.)

Plaintiff visits with friends and family on a monthly basis, sometimes less often, but she primarily speaks with her friends by telephone due to her lack of energy and her physical weakness. (A.R. 57, 62, 312.) Her brother lives in Spring Valley in upstate New York, and, when Plaintiff visits him, he usually picks her up and takes her to his home. (A.R. 291-92.) She has also vacationed in Amagansett on Long Island in New York with a friend who drives her out there. (A.R. 292.) However, she travels to Amagansett far less now because of lack of funds. (A.R. 292.)

Since 1981, Plaintiff has seen Lucille Barish, C.S.W., for depression and anxiety. (A.R. 296-97.) Sessions with Ms. Barish are often conducted over the telephone, as it is often too difficult for Plaintiff to travel to Ms. Barish's office. (A.R. 316, 298.) Ms. Barish referred Plaintiff to Dr. Susan Levine, whom Plaintiff has seen for her condition since around 1996 or 1997. (A.R. 305-06.) Plaintiff travels to Dr. Levine's office by bus, as it is not too far from her home, unlike Ms. Barish's office. (A.R. 316.) For treatment, Plaintiff receives gamma globulin and vitamin shots from Dr. Levine, as Plaintiff cannot tolerate most medications. (A.R. 307, 124.) In addition, Plaintiff has taken Tylenol for the pain, Sudafed for headaches, vitamins and herbs, and she has also received acupuncture treatment. (A.R. 61, 63, 69, 257.)

3. Primary Medical Evidence

a. Treating Physician Susan M. Levine, M.D.

At the time of Plaintiff's first hearing before the ALJ on March 11, 2004, Plaintiff had been seeing Dr. Susan M. Levine for the prior seven to eight years, with more frequent visits of every week or every other week beginning in 2001. (A.R. 305-06; 124.)

Apparently, all of Dr. Levine's patients have CFS. (A.R. 275.) In a report dated February 11, 2002, Dr. Levine wrote the following:

Plaintiff has been under my care for the Chronic Fatigue Syndrome (CFS) for the last 4 years. She developed a gradual onset of fatigue; malaise; sore throats and cognitive problems in 1997 and the diagnosis of CFS was subsequently confirmed by myself after excluding other disorders, such as thyroid, lupus, rheumatoid arthritis and lyme disease after excluding other disorders with similar presentations. She had evidence of prior exposure to Human Herpes Virus 6, an agent that has been associated with CFS. (A.R. 124.) Dr. Levine further noted that, in June 2001, Plaintiff's symptoms of fatigue, malaise, and cognitive problems, including short term memory difficulties and difficulty concentrating became "completely disabling." (A.R. 124.) Plaintiff complained of "headaches, sinus congestion, dizziness and vertigo, palpitations, muscoloskeletal pain in the shoulders, neck and upper back; and gastrointestinal disturbances, including bloating and intermittent diarrhea." (A.R. 124.) The doctor reported that Plaintiff primarily has taken supplements, as she cannot tolerate most medications due to a sensitive stomach. (A.R. 124, 333, 335.) Despite prolonged bed rest, the doctor further reported, Plaintiff "is still not able to stand for more than 10-15 minutes at a time; walk more than several blocks without stopping; travel long distances by herself; and read or write for long periods due to her cognitive problems." (A.R. 124.)

In her February 11 report, Dr. Levine also wrote that, during a physical examination of Plaintiff three days before, Plaintiff displayed "normal vital signs; a red throat, bilaterally enlarged anterior cervical lymph nodes and a normal chest, heart, lung, and abdominal exam." (A.R. 124.) A musculoskeletal exam revealed the presence of trigger points in several locations. (A.R. 125.) Dr. Levine concluded that, "based on [her] wide experience in following and treating patients with [CFS]," Plaintiff's prognosis was poor, and Dr. Levine thus recommended "total disability for an indefinite period of time." (A.R. 125.)

In reports dated March 5 and June 7, 2002, Dr. Levine confirmed her diagnosis that Plaintiff suffered from CFS. (A.R. 119, 118.) On March 5, Dr. Levine wrote that Plaintiff was also suffering from the related condition of fibromyalgia and was "unable to stand, walk, lift or carry packages for more than a few minutes at a time based on objective evidence of loss of muscle strength." (A.R. 119.) On March 6, Dr. Levine reported that Plaintiff "has the following symptoms which are debilitating: severe exhaustion; sore throats; muscle and joint pains; and sleep disturbances" and that "due to her profound fatigue, muscle and joint weakness and pain, and her cognitive problems[,] I deem her prognosis to be poor." (A.R. 118.) In addition, in both reports, Dr. Levine discussed attached laboratory results revealing that Plaintiff showed a "'blunted' response to Growth Hormone stimulation[,] a common finding among a subset of patients with the Chronic Fatigue Syndrome (CFS). The absence of this brain chemical contributes to the patient's lack of energy and chronic insomnia." (A.R. 113, 119, 118, 120-23.) In each of her reports, Dr. Levine reiterated her conclusion that Plaintiff was completely disabled for an indefinite period of time. (A.R. 119, 118, 113.)

In a report dated October 18, 2002, Dr. Levine stated that there had not been any progress in Plaintiff's condition. (A.R. 112.) Plaintiff continued to complain of "severe exhaustion which lasts up to 24 hours a day; muscle and joint pains; headaches; cognitive problems; low grade fevers; sore throats and sleep disturbances." (A.R. 112.) Commenting on the impact of these symptoms on Plaintiff's functioning, Dr. Levine noted that, "[d]ue to her fatigue[,] she is unable to stand for long periods of time; she cannot walk more than 2-3 blocks without stopping; she cannot climb more than a flight of stairs without stopping; and she cannot push or pull objects weighing more than 10 pounds no more than 20 feet at a time." (A.R. 112.) Additionally, "[d]ue to her cognitive problems[, Plaintiff] has difficulty reading and understanding even simple materials and cannot participate in lengthy in person or phone conversations, as she gets easily confused." (A.R. 112.) Dr. Levine concluded that Plaintiff's prognosis was poor and that she continued to recommend total disability for an indefinite period of time. (A. R. 112.)

On February 26, 2004, Dr. Levine reported that Plaintiff's condition "remains completely unchanged from previously. She is completely disabled for an indefinite period of time." (A.R. 127.)

Dr. Levine also provided the progress notes she had taken, from January 6, 2003 to March 29, 2004, on Plaintiff's condition based on numerous physical examinations of Plaintiff, as well as Plaintiff's complaints. (See A.R. 128-41, 147-77.) Dr. Levine's physical examinations revealed repeated instances of red throat, enlarged and swollen cervical lymph nodes, joint pain, and fevers throughout this time period. (A.R. 128-41, 147-77.) In addition, according to the progress notes, Plaintiff consistently complained of fatigue, especially after exertion, which was not improved by rest; sore throat; headaches; muscle pain; sinus congestion; lightheadedness; cognitive problems such as short-term memory loss and inability to concentrate; and sleep disturbances. (A.R. 128-41, 147-77.) The doctor also noted a growth hormone deficiency. (A.R. 128, 165.) Dr. Levine administered to Plaintiff gamma globulin injections and vitamin infusions, and prescribed daily five milligram doses of Lexapro. (E.g., A.R. 159, 165.) The doctor noted that the gamma globulin injections helped improve Plaintiff's level of fatigue. (A.R. 170.)

b. Treating Therapist Lucille Barish, C.S.W.

Lucille Barish, Plaintiff's therapist and representative at the proceedings before the ALJ, began therapy sessions with Plaintiff starting 1981, sometimes weekly and sometimes infrequently (three or four times per year). (A.R. 297.) Ms. Barish chronicled Plaintiff's complaints in notes from sessions with Plaintiff. (See A.R. 180-210.) The handwriting in Ms. Barish's notes is difficult to decipher, and Ms. Barish did not provide the ALJ with a typed version of the notes. However, based on a questionnaire Ms. Barish filled out on February 4, 2002, as well as what the ALJ could make out from Ms. Barish's notes, Plaintiff complained to Ms. Barish of the following symptoms on a recurring basis: fatigue, weakness, muscle pain, exhaustion, dizziness, anxiety, depression, fear, sadness, problems concentrating, either insomnia or excessive sleeping due to pain, feeling "very ill," difficulty grooming, keeping house, and cooking, problems socializing due to tiredness, and limited memory. (A.R. 79, 81, 83-84, 180-210.) In addition, in a questionnaire submitted to the Appeals Council, dated May 21, 2005, Ms. Barish recorded that Plaintiff was restricted in her daily activities and in her ability to maintain social functioning, noting episodes of deterioration in a work setting. (A.R. 243.) In the questionnaire, Ms. Barish wrote that Plaintiff could complete limited work on a timely basis at home. (A.R. 243.) Sometime during 1996 or 1997, Ms. Barish referred Plaintiff to Dr. Levine. (A.R. 293.)

The ALJ discounted Ms. Barish's assessment of Plaintiff's condition. In his decision dated April 1, 2005, the ALJ concluded that, "[a]lthough Ms. Barish is an accepted medical source pursuant to 20 CFR 404.1513, her assessment and opinion of claimant's functional abilities are obviously based upon the claimant's subjective complaints and not supported by the clinical, objective and lack of diagnostic evidence." (A.R. 3L.)

c. Non-Examining Independent Medical Examiner Giancarlo Buganza, M.D.

Dr. Giancarlo Buganza, an independent medical examiner, reviewed the medical records in Plaintiff's file and testified at both the March 11, 2004 and the November 3, 2004 hearings before the ALJ. (See A.R. 326-37, 257-71.) Dr. Buganza is an internist and gastroenterologist. (A.R. 257-58.) He has treated fibromyalgia, but the record is unclear as to whether he has treated CFS. (A.R. 258.) At the March 11 hearing, Dr. Buganza stated that he needed more information to issue his opinion on Plaintiff's condition. (A.R. 332.) Accordingly, the ALJ scheduled a second hearing for November 3, 2004 and directed that, in the meantime, Plaintiff provide Dr. Buganza with all of Dr. Levine's records, as well as Ms. Barish's records dating from January 2000. (A.R. 336-37.) In response to the ALJ's order, Plaintiff submitted progress notes from Dr. Levine, dated from January 6, 2003 to March 29, 2004, and handwritten notes from Ms. Barish, dating back to January 2000. (See A.R. 128-41, 147-77, 180-210.)

At the second hearing on November 3, Dr. Buganza, having had the opportunity to review the additional materials, observed that, according to laboratory results, Plaintiff had "very low growth hormone" and a "markedly abnormal" result to a dehydroepiandrosterone ("DHEA") sulphate test. (A.R. 260.) When the ALJ inquired about the meaning of the tests, the following interchange occurred:

ME [Medical Expert, referring to Dr. Buganza]: It means that probably there is something to do, you know, with out witness. Now, they found --ALJ: When you say "something to do," this is a Court. You have to be specific. Are there other causes of the elevation of that test?

ME: Not that I know. (INAUDIBLE) but it has been in those articles that I mentioned to you, you know.

ALJ: Has it been scientifically established that the elevation of this hormone has any connection to chronic fatigue syndrome?

ME: That I don't know.

ALJ: Because if it's not established, then it's worthless.

ME: I don't know. But certainly the fact that -- may I read?

ALJ: Yeah. Go ahead.

ME: Given the many factors (INAUDIBLE) the axis -- the (INAUDIBLE), pituitary axis, and chronic fatigue syndrome, such as sleep disturbance, psychiatric (INAUDIBLE), medication, and ongoing stress, it seems likely ...

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