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Kabbas-Linches v. Commissioner of Social Security

January 13, 2009


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


Plaintiff, Donna M. Kabbas-Linches ("Plaintiff"), brings this action pursuant to Section 205(g) and Section 1631(c)(3) of the Social Security Act (42 U.S.C. §§ 405(g) and 1383(c)(3)), seeking review of U.S. Administrative Law Judge ("ALJ") Michael I. Gewirtz's August 3, 2005, determination that Plaintiff was not disabled and, therefore, not entitled to Disability Insurance Benefits. Defendant Commissioner of Social Security ("Defendant" or "Commissioner") and Plaintiff now cross-move for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons stated below, Defendant's motion, which urges this Court to find that there was substantial evidence to support the ALJ's determination, is denied. Plaintiff's motion, which principally alleges that the ALJ failed to adequately develop the record and that the ALJ's ruling was not supported by substantial evidence, is granted and this matter is remanded to the Commissioner for further proceedings consistent with this Memorandum and Order.


Plaintiff was born Donna Marie Kabbas on March 29, 1960, in Brooklyn, New York (35, 40, 124).*fn1 Plaintiff obtained a General Equivalency Diploma in 1977 (58, 77, 124), and began working as an insurance clerk in 1978 (53). Plaintiff continued working as an insurance clerk until 1989, when she became a licensed insurance broker (53). That job, which Plaintiff held for the next seven years, was sedentary and did not require heavy lifting. According to Plaintiff, she sat 100 per cent of the time, and never lifted anything heavier than 25 pounds (53).

On November 6, 1994, Plaintiff married Craig Linches and changed her surname to Kabbas-Linches (35). Less than two years later, Plaintiff gave birth to a son, Justin (35-36, 129). Plaintiff stopped working before Justin was born (52, 73), but returned to work part-time sometime in 1997. According to information Plaintiff supplied as part of her disability claim, Plaintiff did a little computer-related work for a construction company in 1997, earning less than $3,000 (53). In 1998, Plaintiff took a part-time position as an administrative assistant at Premier, a textile company, working five hours a day, three days a week, and earning approximately $16,000 (53, 130).

Plaintiff worked at Premier for about a year before the company went out of business (130). Plaintiff was not employed again until 2001, when she had two part-time, clerical jobs in which she earned less than $800 per month (125-26). The first of these lasted about six months, and the second lasted about three months (125).

Although Plaintiff had a history of hypothyroidism dating from at least the mid-1980's (138), Plaintiff did not begin to feel ill until sometime in 2000 (131). At that time, Plaintiff was a patient of Gerard Casale, M.D., an internist practicing on Bay Ridge Parkway in Brooklyn (45, 54). However, since the administrative record does not contain any of Dr. Casale's charts or office records, this Court cannot determine the precise onset of, or nature of, Plaintiff's 2000 illness.

Sometime in 2001, Plaintiff was diagnosed with "gastritis" (136). This Court will take judicial notice that gastritis -- an inflammation or irritation of the lining of the stomach -- is not a single disease, but a condition having many potential causes. See http://www.emedicinehealth. com/gastritis/article_em.htm. However, since the administrative record is devoid of any documentation relating to the diagnosis, cause or treatment of Plaintiff's gastritis (aside from the fact that Plaintiff recalls taking Prevacid (137)), it is impossible to assess the severity of Plaintiff's condition. Accordingly, one cannot gauge from the record the effect which this condition may have had on Plaintiff's ability to perform clerical work.

In April 2002, Plaintiff was hospitalized for one week after passing bloody stools and becoming dehydrated (60). In light of Plaintiff's history of chronic gastritis, doctors initially suspected stomach ulcers and performed a biopsy of the gastric antrum on April 23, 2002 (83). However, that biopsy proved negative for Helicobactor pylori (or H. pylori) (83) -- a bacterium which is the most common cause of stomach ulcers. See h-pylori/DS00958. About one week later, on April 30, 2002, a gastroenterologist -- Dr. Antonio Palagiano -- performed a biopsy of Plaintiff's sigmoid colon, which resulted in a diagnosis of "mild non-specific colitis" (88, 91). Aside from pathology reports relating to these biopsies (88-89, 91), and a "Colonscopy Procedure Report" relating to the second procedure (92), there are no documents in the administrative record relating to Plaintiff's April 2002 hospitalization.

Following her release from the hospital, Plaintiff visited Dr. Palagiano on a regular basis, perhaps as frequently as once every two weeks (94). He apparently treated her with steroids and a host of other medications (118), but found that Plaintiff presented a "difficult case" (95). In April 2003, Plaintiff was hospitalized for another week for problems relating to her colitis.

While Plaintiff recalls that she received "constant IVs," antibiotics and two colonoscopies while in the hospital (60), the exact nature of the problems that resulted in Plaintiff's second hospitalization are unclear. The administrative record does not contain Dr. Palagiano's medical charts or office records, or any hospital records other than a pathology report relating to an April 4, 2003, colonoscopy (90). That report, issued following examination of a specimen removed from the left side of Plaintiff's colon, confirmed that Plaintiff had "active colitis with cryptitis and depletion of goblet cells" (90).

In the Fall of 2003, Dr. Palagiano referred Plaintiff to a specialist, Dr. Herbert Dyrszka, in an effort to control Plaintiff's colitis (55). Although Plaintiff's disability claim states that she was scheduled to see Dr. Dyrszka on October 16, 2003 (55), there are no medical documents relating to this visit in the administrative record.

On October 15, 2003, Plaintiff applied for disability insurance benefits. In the course of evaluating her claim, a Disability Analyst from the New York State Office of Temporary and Disability Assistance ("OTDA") sent questionnaires to both Dr. Casale and Dr. Palagiano. Both doctors responded and opined that Plaintiff could sit or stand without limitation, and could occasionally lift and carry objects (97, 103). Dr. Casale noted that Plaintiff's physical activity could be "limited" when she had active ulcerative colitis and diarrhea and that she had suffered "severe blood[y] diarrhea ... in the recent past" (103), but claimed that she had "responded well" to treatment with "[A]sacol and steroids" (101).*fn2 However, Dr. Casale also stated that he had not seen Plaintiff in more than three months (100), and that her digestive problems were being treated by "GI" -- presumably, Dr. Palagiano, her gastroenterologist -- who had prescribed the Asacol and steroids (100-01).

Dr. Palagiano's questionnaire did not echo Dr. Casale's rosy assessment. Dr. Palagiano characterized Plaintiff's ulcerative colitis as "very active" (95) (emphasis in original), and her case as "difficult" (95). The doctor noted that Plaintiff had been "steroid dependent" for more than two years and implied that the medications he prescribed had not been effective, stating that Plaintiff would resume work when her colitis was "brought under full control" (98). Dr. Palagiano opined that Plaintiff remained "unable to work at present" due to fatigue and pain (95). The OTDA did not arrange to have Plaintiff examined by a medical expert. Rather, on January 2, 2004, the Disability Analyst sent the treating physicians' questionnaires to a Dr. P. Seitzman, asking the doctor's advice regarding Plaintiff's residual functioning capacity (106). In evaluating the questionnaires, Dr. Seitzman noted that Plaintiff was "said to be a 'difficult case' requiring regular steroids" (106). However, Dr. Seitzman ignored any mention of fatigue or pain in the questionnaires, focusing instead on the fact that Plaintiff could sit and stand ...

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