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Perez v. Astrue

August 14, 2009

FRANCISCA PEREZ, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM AND ORDER

Plaintiff Francisca Perez filed an application for Supplemental Security Income ("SSI") under the Social Security Act (the "Act") on December 18, 2002, alleging disability beginning on December 10, 2002, which was denied on April 24, 2003. Thereafter, plaintiff filed an untimely written request for hearing on August 22, 2003, but established good cause for the late filing. Plaintiff's application was denied initially and on reconsideration. Plaintiff testified before an Administrative Law Judge ("ALJ") at three hearings held on January 22, 2004, December 17, 2004, and September 23, 2005. Plaintiff claimed disability based on "asthma, allergies, hepatitis B and depression." (R. at 64, 73.) By a decision dated June 12, 2006, the ALJ concluded that plaintiff was not disabled within the meaning of the Act. On September 7, 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).*fn1 The Commissioner now moves for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), seeking affirmation of the denial of benefits. The Commissioner urges the court to affirm the ALJ's decision because it "is based upon the correct legal standards and is supported by substantial evidence." (Def.'s Mem. Supp. Mot. at 1.) Plaintiff cross-moved for judgment on the pleadings, seeking reversal of the Commissioner's decision, remand for further administrative proceedings, and additional relief as found proper by the court. (Pl's Mem. of Law in Supp. of Cross-Mot. at 3.)

For the reasons set forth more fully below, the Commissioner's motion is denied. Plaintiff's cross-motion is granted to the extent that this case is remanded to the Commissioner for further administrative proceedings consistent with this Order.

BACKGROUND

A.Non-medical and Testimonial Evidence

Plaintiff was born on January 3, 1970 in the Dominican Republic, completed nine years of education, and can read and write in Spanish. (R. at 79, 563.) Before coming to the United States, plaintiff was employed by a cable company where she collected and recorded payments.

(R. at 570.) She resides with her three children and is unemployed. (R. at 562, 569.) She has never worked in the United States. (R. at 571.) Plaintiff became a legal resident of the United States in 1992 and passed the citizenship exam in 1997. (R. at 64, 496.) However, she was never sworn in as a citizen. (R. at 496.) Plaintiff divorced her husband after he was deported for drug addiction. (R. at 565.)

Plaintiff performs minor housework, watches television, and sometimes takes her children to school. (R. at 90-91.) She goes to church once a week and shops for food or other items twice a month. (R. at 92-93.) Plaintiff is able to leave her home on her own, use public transportation, and go out twice a day. (R. at 92.) She can walk only two blocks before she has to stop and rest, but can continue after two minutes of rest. (R. at 95.) Plaintiff's social activities consist of daily phone conversations. (R. at 94.)

B.Medical Evidence

1.Treating Source Evidence

The treating sources record includes statements by Dr.David N. Costos-Mejia and by doctors at Beth Israel and Wyckoff Hospitals. Dr. Mejia has been plaintiff's treating doctor since 2000 and her prior doctor was Dr. Constantino Katellis. (R. at 85, 579.) Dr. Mejia stated that plaintiff could not work due to the following illnesses: urticaria, arthritis, chronic hepatitis B, asthma, angioedema with frequent episodes of hives, laryngo edema, and joint pain. (R. at 233, 241, 250, 261.) In addition, Dr Mejia stated that plaintiff could not work because "she has to take care of three children." (R. at 174, 241.) Dr. Mejia's claim that plaintiff suffers from of chronic hepatitis is contradicted by medical records from the Bayridge Endoscopy and Digestive Health Center which state, "[t]he patient is a hepatitis B carrier with no evidence of chronic hepatitis, in view of her normal liver function tests." (R. at 109.)

Plaintiff sought treatment at Beth Israel Medical Center on several occasions and was treated at Beth Israel throughout the relevant period. (R. at 291-347.) During this period, she complained primarily of joint pain and red and itchy skin. (R. at 302, 306, 308-10 336-37, 340-43.) Doctors at Beth Israel diagnosed her with urticaria and angioedema. (R. at 294, 297, 298, 302, 303, 306, 310, 315, 319, 330-31, 336-37, 340, 346-47.) The record states that her chronic urticaria was "controlled with Zyrtec and Atarax." (R. at 456.) Plaintiff also sought treatment for allergies at Wyckoff Hospital in 2003. (R. at 216-18.)

2.Agency Consult Evidence

Dr. Myron Seidman, the Commissioner's consulting internist, performed a consultative medical examination of plaintiff on March 28, 2003. (R. at 128.) According to Dr. Seidman, plaintiff stated that she cannot work "because she has a several-year history of having allergy related problems causing swelling of the head, knees, arms and legs, back pain, pruritis, fevers and chills." (Id.) Based on his examination of plaintiff, however, Dr. Seidman "could not confirm limitation lifting, carrying, standing, walking, sitting or pushing or pulling . . . controls."

(R. at 133.)

C.Psychiatric Evidence

1.Treating Source Evidence

Plaintiff began visiting psychiatrist Victor Basbus in 2002. (R. at 213, 580 584.) Though plaintiff states that Dr. Basbus examined her "many" times, the extent of their relationship is not clear from the record. (R. at 497, 498.) On June 1, 2002, Dr. Basbus listed anxiety, depression, and sleeping disorder as plaintiff's chief complaints. (R. at 213.) Dr. Basbus noted that plaintiff was oriented but her mood was anxious and depressed, and therefore diagnosed her with recurrent depression, chronic anxiety, and insomnia. (Id.)

On April 5, 2003, Dr. Basbus completed a questionnaire of his treatment of plaintiff. (R. at 117-213.) He identified plaintiff's treating diagnosis as "depression recurrent" and noted that she has hepatitis B, chronic asthma, history of lower back pain, pain in her knees and feet, arthritis, headaches, and right hand pain. (R. at 117.) Dr. Basbus prescribed Ambien, Naprosen, Celexa, and Lexapro. (R. at 118.) Dr. Basbus also stated that plaintiff "is sick and needs medical and psychiatric treatment" and "is unable to work." (R. at 119-20.) He also opined that plaintiff had limited understanding and ...


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