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Auffant v. Commissioner of Social Security Administration

March 23, 2009


The opinion of the court was delivered by: Neal P. McCURN, Senior U.S. District Court Judge


Plaintiff Madonna Auffant ("plaintiff") brings this action pursuant to § 405(g) of the Social Security Act (the "Act"), codified at 42 U.S.C. §§ 405(g).

Plaintiff seeks review of the final decision of the defendant Commissioner ("Commissioner") of the Social Security Administration ("SSA"), who found that plaintiff's disability had ceased, and accordingly denied her continued disability insurance benefits ("DIB") under the Act. For the reasons stated below, the Commissioner's decision will be reversed and remanded.

I. Facts and Procedural History

A. Facts

The following facts and procedural history are set forth in plaintiff's brief in support of judgment on the pleadings (Doc. No. 5), and in the administrative transcript*fn1 (Doc. No. 4). The Commissioner does not contest these facts, absent any inferences or conclusions asserted by the plaintiff, and incorporates them into his brief (Doc. No. 7 at p. 3). Plaintiff's date of birth is July 15, 1964. She was 34 years old at the time of her first hearing, and 40 years old at the time of her latest hearing (Tr. 114). She is a high school graduate with less than a one year college education (Tr. 481). She worked for four years as a corrections officer and had previously done some security work (Tr. 487). Plaintiff suffers from erythema multiforme, myalgias, arthralgias and neuropathy (Tr. 19). She also suffers from medication side effects and fatigue (Tr. 509-510). As she testified at her most recent hearing, the erythema multiforme periodically causes blistering, which can occur on her hands, face, feet, joints, in her mouth, in her nose, and down her throat (Tr. 482). Plaintiff testified that the blistering events can happen two to four times a year (Tr. 490), and each occasion can last two to four weeks (Tr. 492). Plaintiff states that while in acute flair-up, she is unable to perform even the simplest of tasks. Plaintiff testified as follows: "I can do absolutely nothing. I can't even hold a broom in my hand. I cannot cook. I can't bathe myself. I can't wash my hair. My husband does that for me ...there's nothing that I can do and it gets very upsetting and it gets very depressing ...." Plaintiff also testified that she becomes disfigured from the lesions (Tr. 493).

To treat the flare-ups, plaintiff takes Prednisone for ten days (Tr. 492). Plaintiff also experiences myalgias and arthralgias in her joints and gets numbness and tingling in her hands, face and feet. Plaintiff takes Neurontin to ease the numbness and tingling, and Nortriptyline to help her sleep (Tr. 482, 493-94). Plaintiff takes Motrin for the pain in her arms and legs (Tr. 495). She also experiences a burning feeling on her skin (Tr. 494; 495) for which she takes Lidoderm (Tr. 494). While the blistering comes and goes, the other symptoms occur on a daily basis (Tr. 496).

Plaintiff also testified that she experiences side effects from her medication. She states that she feels disconnected, and like she is not in control. At her hearing, plaintiff stated that if she had taken her medications on hearing day, she would probably be slurring her words, and unable to think quickly (Tr. 509). Plaintiff claims that she loses concentration. As an example, plaintiff states that she is unable to pay attention long enough watch a two hour movie (Tr. 510).

B. Procedural History

Plaintiff filed an application for social security disability insurance benefits on or about May 6, 1998 (Tr. 114).*fn2 The claim was initially denied (Tr. 28-31) and upon reconsideration was denied again (Tr. 32-35). A hearing was requested by plaintiff (Tr. 36). Upon completion of that hearing, the administrative law judge ("ALJ"), in a decision rendered on March 25, 1999, found plaintiff disabled and entitled to a period of disability dating back to May 31, 1997 (Tr. 46-56).

On February 4, 2003, the Social Security Administration notified plaintiff that pursuant to a continuing periodic review, she had been found to be not disabled, and her disability benefits would cease effective that month. However, plaintiff was advised that she would receive benefits through April 2003. The SSA notified plaintiff that its decision was based on the ground that her "health has improved" and that she was "now able to work" (Tr. 57-58). Plaintiff requested reconsideration of this decision (Tr. 59-60) but that request was denied on July 10, 2003 (Tr. 63-88). Plaintiff obtained legal representation and requested an administrative hearing (Tr. 89-90) which was held on September 29, 2004. Plaintiff testified before ALJ Thomas Zolezzi (Tr. 477-515). The ALJ issued an unfavorable decision on October 19, 2004 (Tr. 8-20). This appeal followed.

C. Treating Physicians

The following is a summary of the opinions of plaintiff's treating physicians at all times pertinent to the case at bar, and which were available to the ALJ for consideration prior to reaching his unfavorable determination. The ALJ specifically mentions Dr. French, Dr. Lava and Dr. Von Reusner in his written decision.

1. Dr. Von Reusner

From approximately 2000 until the date of this action, plaintiff's treating physician was Mathias Von Reusner, M.D. ("Dr. Von Reusner"). A note written by Dr. Von Reusner dated October 16, 2001 indicates: "Follow-up patient from Catskill. She has been fully investigated for MS, which was negative in Albany. She has a history of erythema multiforme. She has a muscle twitching and can't control her legs at night. She feels sometimes like she is spaced out in a dream. She is afraid of these symptoms...." (Tr. 420). Dr. Von Reusner assessed this as "possible neuropathy, unknown origin" and "restless leg syndrome" (Tr. 420). A further note dated October 16, 2001 indicates complaints of "muscle tremors, disorientation, clumsy" (Tr. 421). A note dated October 30, 2001 indicates "FU Blister on hands, elbow" (Tr. 419). On October 31, 2001, Dr. Von Reusner recorded: "Erythema multiforme lesions on her arms and hands and face. It is again erythema multiforme. She has it for three days now. She has all her symptoms with fatigue, lack of concentration and numbness in her arms and legs prior to that and she disconcerted [sic] there is a pattern to developing these symptoms. Dr. French prescribed Prednisone...." (Tr. 418). That same office note indicates "she looks well," even as it goes on to record, "she has typical erythema multiforme patches over her lips, face and hands which look like little target lesions" (Tr. 418). Plaintiff was told to increase her Prednisone for two days (Tr. 418).

On May 23, 2002, Dr. Von Reusner noted plaintiff's "unexplained possible neuropathy and some weight loss" and put her on Prevacid. That note reads, "her skin rash has not shown up." On July 25, 2002, plaintiff complained of feeling like "bugs crawling all over, brain feels cold, off balance, fingers twitching" (Tr. 416). Plaintiff saw Dr. Von Reusner on January 17, 2003, who noted: "Severe heartburn. Was not relieved with Prevacid. No more neuropathy or skin rash so far. She is still unable to work. She is not seeing any of the specialists currently" (Tr. 412). On March 7, 2003, plaintiff again visited her treating physician, complaining of her skin burning post hysterectomy, which Dr. Von Reusner assessed as "most likely some neuropathic nerve pain post surgery" (Tr. 445). On May 29, 2003, plaintiff complained that her legs felt heavy, and complained of headaches and of feeling forgetful (Tr. 444). Dr. Von Reusner's assessment included "myalgia, fatigues and neuropathy" (Tr. 444).

On July 25, 2003, plaintiff complained of "both legs burning and painful" and was directed to increase her Motrin to 600 mgs (Tr. 443). On a September 9, 2003 visit, plaintiff complained that she "feels like crying," had a lack of concentration, and had a skin rash (Tr. 442). The note appears to read "acute fatigue, pending erythema multiforme." Dr. Von Reusner prescribed Prednisone (Tr. 442). Dr. Von Reusner's notes of December 23, 2003, indicate that plaintiff sought treatment for anxiety, and her past medical history of erythema multiforme was discussed (Tr. 438).

On July 11, 2004, in response to a request made by plaintiff's counsel on June 24, 2004, Dr. Von Reusner provided updated medical records and a form setting forth opinion evidence regarding plaintiff's residual functional capacity ("RFC") (Tr. 427-447). Dr. Von Reusner stated that plaintiff could stand and walk a maximum of "less than two hours" in an eight hour work day. He further opined that she had the capacity to sit for "about four hours" per day (Tr. 429). Plaintiff would need to change position, for sitting and standing, every thirty minutes (Tr. 430). He concluded that, on average, plaintiff would have to be absent from work "about twice a month" (Tr. 431).

During a February 9, 2004 visit to Dr. Von Reusner, the doctor noted that plaintiff had "a little eruption over her hand," referring to her erythema multiforme (Tr. 434). She presented with symptoms of anxiety on that visit and on a February 24 visit, following her attempt to quit smoking (Tr. 432, 434). During a January 26, 2004 visit, she had an eruption over her hand (Tr. 436).

2. Dr. Lava

Plaintiff also sought help from neurologist Neil S. Lava, MD ("Dr. Lava"). Dr. Lava could not explain plaintiff's complaints of a burning sensation, achiness or fatigue (Tr. 388-389). In a letter to Dr. Von Reusner dated January 2, 2001, Dr. Lava recounted plaintiff's history, including complaints of numbness, tingling and discomfort in her hands, feet, legs, face as well as her forgetfulness (Tr. 384-86). Dr. Lava commented on her negative MRI and he noted a normal EMG (Tr. 385-387). His sensory examination revealed "a slight decreased pinprick to the wrists and ankles bilaterally" (Tr. 386). He stated thathe could not make a neurological diagnosis, and also that "the sensory complaints could be related" to an immunological problem (Tr. 386). Plaintiff had a series of nerve evoked potential studies done in May 2001, all of which yielded normal results (Tr. 371-374). Nerve conduction studies were also normal (Tr. 375-383). On July 19, 2001, Dr. Lava performed a lumbar puncture on plaintiff (Tr. 365). Dr. Lava saw plaintiff again on December 24, 2001, at which time her neurological exam was "entirely benign" (Tr. 389).

Dr. Lava saw plaintiff in May of 2003 and again on September 13, 2004 (Tr. 451). He noted that her complaints since her May 2003 visit were similar but worse. Dr. Lava noted that

[h]er hands are feeling more swollen. When she lies down at night to go to sleep she is awaken (sic) within a few hours with a swelling feeling in her hands and forearms. She will awaken intermittently at night, but the feeling does not go away. If she gets up and moves around the feeling is a bit better. By the morning she is very uncomfortable and it feels as if her skin and her entire body is very swollen. As the morning wears on this feeling goes away and she is fine until the night again. She, however, has some tingling in her hands and feet as before. (Tr. 451).

Dr. Lava did not have an explanation for the fact that she was symptomatic. Id. Dr. Lava performed tests, one of which disclosed a "mildly elevated ANA"*fn3 and he sent her to see a rheumatologist (Tr. 459). Dr. Lava informed plaintiff that if he couldn't make her feel better he ...

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