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Feliciano v. Astrue

August 20, 2008

DEVY FELICIANO, PRO SE, PLAINTIFF,
v.
MICHAEL J. ASTRUE,*FN1 COMMISSIONER OF SOCIAL SECURITY DEFENDANT.



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

MEMORANDUM AND ORDER

Pro se plaintiff Devy Feliciano ("Plaintiff") filed an application for supplemental security income ("SSI") under the Social Security Act (the "Act") on March 8, 2002. Plaintiff's application was denied initially and on reconsideration. Plaintiff testified at a hearing held before an Administrative Law Judge ("ALJ") on December 29, 2003. By decision dated January 16, 2004, the ALJ concluded that plaintiff was not disabled within the meaning of the Act. On June 24, 2005, the ALJ's decision became the Commissioner's final decision when the Appeals Council denied plaintiff's request for review. Plaintiff filed the instant action seeking judicial review of the denial of benefits pursuant to 42 U.S.C. § 405(g) and 1383(c)(3). The Commissioner now moves for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), seeking affirmation of the denial of benefits on the grounds that the ALJ properly determined that plaintiff was not disabled, and the factual findings are supported by substantial evidence. Pro se Plaintiff did not oppose the instant motion. For the reasons set forth more fully below, Commissioner's motion is denied. The court finds that the ALJ failed to adequately develop the record and improperly applied the treating physician rule. The court remands this case to the Commissioner for further proceedings.

BACKGROUND

A. Testimonial and Non-medical Evidence

On December 29, 2003, Plaintiff appeared and testified before ALJ Martin K. Kahn. (Tr. 351). Plaintiff, a 42-year-old woman with a high school equivalency diploma, worked "on an off" as a waitress beginning in 1989. (Tr. 353-54). In 1999, Plaintiff stopped working due to chronic joint pain, fatigue, dizziness, asthma, and high blood pressure. (Tr. 354-55). Plaintiff testified that she remains in bed most days, watching television or using the computer and that her son assisted her with grocery shopping, cooking, and cleaning. (Tr. 373-74).

Plaintiff was diagnosed with Lupus, which caused her to continuously experience pain in her left hip and leg. (Tr. 355, 359). Additionally, Plaintiff experienced minor and major "flare-ups," which caused joint pain, significant joint swelling, fatigue, nausea, vomiting, abdominal cramps, diarrhea, increased blood pressure, aggravation of asthma, and bad chest pains. (Tr. 356-57, 359). Plaintiff testified that these symptoms inhibited her ability to function. Pain in her fingers prevented her from lifting more than five or six pounds. (Tr. 361). Pain in her left hip and lower back prevented her from standing or sitting for more than ten or fifteen minutes. (Tr. 360). Plaintiff was hospitalized in April, June, and October of 2003. (Tr. 366-68). In addition to these physical impairments, Plaintiff testified that she was bipolar and suffered from post-traumatic stress syndrome. (Tr. 362). She thought about her own death and attempted suicide while under the influence of alcohol in September of 2002.*fn2 (Tr. 365, 378). Additionally, she suffered from panic attacks, particularly when she knew she had to leave her home. (Tr. 364).

Plaintiff took prescription medication for her psychiatric problems with limited success. (Tr. 372). She took Plaquenil for Lupus, experiencing hair loss and rashes as side effects. (Tr. 372-73). She took Advair, Abuterol, and used a nebulizer for asthma; however she continued to suffer from attacks. (Tr. 369-70, 379). Plaintiff took medication that controlled her blood pressure. (Tr. 375). She stated that the longest she went without taking medication was three months, and that depression prevented her from obtaining medication at that time. (Tr. 385).

B. Medical and Psychiatric Evidence

1. Plaintiff's Medical and Psychological Evidence

In November 2001, Plaintiff visited Dr. Melissa Tracy at the Montefiore Hospital and Medical Center emergency room complaining of chest pains, palpitations, and nearly fainting. (Tr. 124, 126). She was treated and discharged with a prescription for Nefedipine. (Tr. 125). In January 2002, Dr. Wiggs, of Jamaica Hospital, diagnosed Plaintiff with lupus and hypertension. (Tr. 151). Dr. Wiggs noted that Plaintiff was being treated for hypertension, systemic lupus erythematous, and depression. (Tr. 152). Plaintiff visited Dr. Wiggs in May 2002, complaining of increased anxiety and depression, as well as joint pain. (Tr. 247). Dr. Wiggs prescribed Celebrex, Prozac, and Tylenol. (Tr. 248). In June 2002, Dr. Wiggs diagnosed Plaintiff with panic disorder with agoraphobia, anxiety, depression, lupus, and hypertension. (Tr. 249-50). Dr. Wiggs substituted Bextra for Celebrex and refilled prescriptions for Procardia, Ventolin, Trazodone and Klonopin. (Id.) In July 2002, Dr. Wiggs diagnosed Plaintiff with dermatitis, proscribed Proventil for asthma, and referred Plaintiff to a rheumatologist. (Tr. 254). In September 2002, Plaintiff was admitted to Montefiore Medical Center for an extracranial hematoma and for depression after falling and injuring her head due to alcohol consumption. (Tr. 203, 217). Plaintiff was anxious and reported wanting to hurt herself. (Tr. 203, 217). Plaintiff's depression coincided with her alcohol use. (Tr. 223). She was discharged the next day. (Tr. 205).

Svetlana Gavrilova, M.D., completed a Medical Source Statement of Ability to Do Work-Related Activities on January 9, 2003. (Tr. 195-99). According to the statement, Dr. Gavrilova first saw Plaintiff on January 12, 2002. (Tr. 195). Plaintiff's symptoms included joint, chest, and abdominal pain, and difficulty ambulating. (Id.) She diagnosed Plaintiff with lupus, asthma, anxiety, hypertension, and panic disorder with agoraphobia. (Id.) Plaintiff had a limited ability to reach, handle, finger, and feel. (Tr. 198). Plaintiff could occasionally lift less than ten pounds, could stand or walk less than two hours in an eight-hour work day, and could sit for less than six hours in an eight-hour workday. (Tr. 196-97). In support of these conclusions, Dr. Gavrilova noted that the "[p]atient can carry items less than 5 lbs and can't sit more than 10 min[ute]s." (Tr. 197). Plaintiff alleges that Dr. Svetlana Gavrilova is her treating physician; however, when asked if she recognized Dr. Gavrilova's name, Plaintiff answered that she did not. (Tr. 384).

In May 2003, Plaintiff was hospitalized with difficulty breathing, chest pain, and a cough. (Tr. 265). In July 2003, Plaintiff visited Dr. Wiggs for medication refills. (Tr. 266). The report for this visit indicated Plaintiff had not taken her medications for seven months. (Id.) Dr. Wiggs prescribed Klonopin, Flovent, Singulair, Mocardia, Plaquenil, Prevarid, Atarax, Bextra, and Trazadone, and directed Plaintiff to consult with rheumatology, to attend physical therapy, and to obtain a mammogram. (Tr. 267).

2. Agency Consults

On March 27, 2002, Plaintiff visited Steven Rocker, M.D, who diagnosed her with multiple myalgia/arthalgia, probable fibromyalgia, hypertension, obesity, asthma, and depression. (Tr. 164-65). He concluded that Plaintiff was "physically able to perform sedentary, light ...


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