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Rivera v. Astrue

March 16, 2009


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


Plaintiff Sophia Rivera filed an application for supplemental security income ("SSI") benefits under the Social Security Act (the "Act") on August 27, 2003. Plaintiff's application was denied initially and on reconsideration. Plaintiff, who was unrepresented at the time of her hearing, testified before an Administrative Law Judge ("ALJ") on August 25, 2005. By a decision dated November 4, 2005, the ALJ concluded that plaintiff was not disabled within the meaning of the Act. On May 26, 2006, 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 Rule 12 of the Federal Rules of Civil Procedure, seeking affirmation of the denial of benefits on the grounds that his decision is supported by substantial evidence and is free of legal error.

(Gov't Mem. at 1.) Plaintiff cross-moved for judgment on the pleadings, seeking reversal of the Commissioner's decision, or alternatively, remand. In the case of remand, plaintiff requests the claim be reassigned to a new ALJ. (Pl. Mem. at 25.) Plaintiff contends that the Commissioner failed to properly evaluate the medical evidence and that the ALJ ignored important vocational considerations. (Pl. Mem. at 17-25.) For the reasons set forth more fully below, the Commissioner's motion and plaintiff's cross-motion for judgment on the pleadings are denied. The court grants plaintiff's alternative request and remands this case before a different for further proceedings consistent with this opinion.


A. Non-Medical and Testimonial Evidence

Plaintiff was born in 1954 and attended school in Puerto Rico through the fifth grade.

(Tr. 581.) She learned English after immigrating to the United States in 1980; however, the extent of her proficiency is unclear. (Tr. 21, 45, 59-69, 89-102, 573, 609-610.) Plaintiff appears to have no relevant work experience. (Tr. 26, 70, 78, 81-88, 581.) Plaintiff appeared and testified without representation at a hearing before an ALJ on August 25, 2005. (Tr. 570-621.) She indicated difficulty with oral communication, focusing, finishing activities, and remembering things. (Tr. 95-96.) She explained that she had difficulties walking, breathing, and sitting. (Tr. 600-01, 604-05.) She denied use of drugs or alcohol. (Tr. 602.) She also stated that she hears voices calling her and sounds of knocking. (Tr. 606.) Plaintiff asserted that she cannot work because of back pain, bronchitis, asthma, anxiety, Hepatitis C, vomiting, insomnia, depression, and forgetfulness. (Tr. 581, 593.)

B. Medical Evidence

From March 1998 to February 2005, plaintiff received treatment for a variety of health conditions. In March 1998, plaintiff visited the New York Presbyterian Hospital ("NYPH") for asthma and pain due to varicose veins in her lower extremities. (Tr. 325.) She was advised to return for sclerotherapy treatments. (Id.) She continued periodic treatment for this condition and, ultimately, was diagnosed with varicose veins. (Tr. 332-46.) Plaintiff returned to NYPH with new symptoms in July 1999. She complained of asthma and back pain radiating to her shoulders when walking, standing, and cleaning. (Tr. 337.) Dr. Afua Yeboaa Forson advised her to abstain from lifting and twisting. (Id.) In November 2000, she was diagnosed with claudication of the lower extremities and varicose veins. (Tr. 425.)

In August 2002, plaintiff returned to NYPH for hot flashes, nervousness, and weight loss. (Tr. 397.) She was referred to a social worker and given medicine for blood pressure. (Id.) Later that month, Dr. Stevan A. Gonzales evaluated her, diagnosing her with hypertension, asthma, insomnia, and depression. (Tr. 428-29.) In October 2002, plaintiff tested positive for Hepatitis B and C. (Tr. 433.) In March 2003, Dr. Amret Thompson evaluated plaintiff and diagnosed her with moderate persistent asthma. (Tr. 440.) In September 2003, Dr. Wenderoth examined plaintiff and diagnosed her with vertigo related to an eardrum injury. (Id.)

Dr. Marta Rivera, another treating physician, evaluated plaintiff in September 2003. (Tr. 450-52.) Plaintiff complained of dizziness, vertigo, asthma, depression, Gastroesophageal Reflux Disease ("GERD"), and leg pain. (Id.) Dr. Rivera indicated that plaintiff had "real medical problems;" however, those problems did not rise to the level of a disability. (Tr. 452.)

Dr. Rivera noted that plaintiff's asthma and GERD could be managed with medication, but that her leg pain merited further evaluation and could potentially qualify her as disabled. (Id.)

In February 2004, plaintiff returned to NYPH complaining of dypnea and wheezing. (Tr. 460.) Dr. Ioannis Oikonomou noted poor air movement, mild expiratory wheezing, and increased her asthma medication. (Id.) Dr. Oikonomou also recommended liver function, viral load, and Hepatitis panel tests. (Id.) On February 17, 2004, Dr. Oikonomou noted that plaintiff was under his care for poorly controlled, moderate, persistent asthma, depression with psychosis, and GERD. (Tr. 464.) She continued periodic treatment in 2004 for these conditions, during which, plaintiff's Hepatitis C resolved itself. (Tr. 472, 478, 483.)

In February 2005, a bone mineral density scan of plaintiff's spine and femur revealed abnormal bone mineral density compatible with osteopenia of the lumbar spine. (Tr. 529.) She continued periodic treatment in 2005, during which several doctors advised her of the importance of quitting smoking. (Tr. 504-05, 511.) She quit for a few months. (Tr. 505.)

C. Psychiatric Evidence

Plaintiff first sought treatment for her psychiatric problems in August 1999, at the Western Queens Consultation Center ("WQCC"). (Tr. 256.) Dr. Ivan Subervi diagnosed plaintiff with Major Depressive Disorder, Dysthimic Disorder, and Generalized Anxiety Disorder. (Id.) On September 2, 1999, Dr. Subervi prepared an Initial Treatment Plan with plaintiff, recommending weekly visits as her condition was severe and enduring. (Tr. 251.)

Plaintiff began regularly attending therapy sessions in January 2000. (Tr. 201-04, 207.) She attended therapy once a week with psychiatric evaluations conducted several times annually.

Her various diagnoses over the years included Major Depressive Disorder, Dysthymic Disorder, and General Anxiety Disorder. (Tr. 201.) During this period, plaintiff's GAF*fn2 score fluctuated between 45 and 60; 55 was the most frequently reported score. (Tr. 201-549.) In February 2000, Dr. Subervi indicated that plaintiff needed to improve her depressed mood, anxiety, and asthma as well as reduce her preoccupation with environmental difficulties. (Tr. 259-60.) One of plaintiff's goals established in this session was to start working part-time or full-time. (Tr. 260.) The severity of plaintiff's condition was "moderate." (Tr. 259.) In May 2000, Dr. Subervi noted that plaintiff improved her depression and anxiety and wanted to start studying computer skills; however, Dr. Subervi also indicated that plaintiff needed to "reduce functional deficits which impede gainful employment." (Tr. 261.) Her capabilities remained the same in January 2001. (Tr. 265-66.)

In a treatment plan completed in June 2002, plaintiff was diagnosed with General Anxiety Disorder and Major Depressive Disorder. (Tr. 279.) In March 2003, it was again determined that plaintiff needed to reduce functional deficits. (Tr. 286.) On April 3, 2003, an unnamed WQCC psychotherapist, completed a certification letter indicating that plaintiff's severe depression and anxiety symptoms rendered her disabled. (Tr. 223.) On June 18, 2003, Dr. Sherley Millet of WQCC evaluated plaintiff and noted that plaintiff needed to reduce functional deficits which impede gainful employment. (Tr. 287-288.) Dr. Millet indicated that plaintiff continued with the same limitations in February 2004. (Tr. 297-298.) In reviews of subsequent visits, plaintiff showed improvement with occasional regression, (Tr. 299-308, 556-59, 561.) In ...

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