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Moulding v. Astrue

October 29, 2009


The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge*fn1


Karen Moulding ("Plaintiff") brings this action pursuant to 42 U.S.C. § 405(g) to challenge the final determination by the Commissioner of Social Security (the "Commissioner") that she was not disabled within the meaning of the Social Security Act beginning December 30, 2001, and hence not eligible for disability insurance benefits ("DIB") or Supplemental Security Income ("SSI"). Both the Commissioner and Plaintiff move for judgment on the pleadings. For the following reasons, the Commissioner's motion is denied and the case is remanded for further proceedings consistent with this opinion.



Plaintiff applied for DIB and SSI on March 21, 2002 for the period beginning December 30, 2001, alleging she was unable to work due to chronic Lyme disease. Her application was denied; Plaintiff then requested an administrative hearing before an administrative law judge ("ALJ"), which was held on October 20, 2003. The ALJ, by decision dated January 26, 2004, found Plaintiff not disabled. Plaintiff requested review, and the Appeals Council, by order dated October 31, 2005, vacated the ALJ's decision and remanded for further proceedings. A second hearing before the ALJ was held on May 22, 2006.*fn2 The ALJ again found Plaintiff not disabled by decision dated September 18, 2006. Plaintiff then commenced this action by filing a complaint on November 13, 2008.


Plaintiff, born in 1962, has a law degree and two other post-graduate degrees. Transcript of Administrative Record of the Social Security Administration ("Tr.") 152, 464, 477, 479. Prior to December 2001, Plaintiff worked as a lawyer, adjunct college instructor, editor and writer. Tr. 147, 152, 157, 166, 462-63, 477. The record reveals that Plaintiff has never earned more than $25,112 in a single year and earned only $684 in 1993. Tr. 138.In the ten years prior to her alleged onset of disability in December 2001, Plaintiff's median annual income was $9,132. See id. After her alleged onset, Plaintiff worked part-time as an adjunct college English instructor and as an editor, earning $10,457 in 2002; $8,912 in 2003; $9,285 in 2004; and $3,510 in 2005. Tr. 138, 478.

It appears that Plaintiff was bitten by a tick while visiting the Hamptons in 1995. Tr. 465. Plaintiff noticed a sign indicating ticks were endemic in that area; after some time, Plaintiff developed the bulls-eye rash characteristic of tick-borne Lyme disease. Tr. 329. However, Plaintiff was not tested or treated for that illness until six months later. Tr. 466. Like approximately five percent of Lyme disease victims, Plaintiff's condition had by then become "chronic." See Tr. 427. The ALJ agreed that Plaintiff has had chronic Lyme disease throughout the period for which she claims disability.*fn3 Tr. 18.

Plaintiff complains of various symptoms that flare up cyclically and unpredictably. Tr. 173. While she may be "symptom free" one week (Tr. 76), a "flare up" of such symptoms might render her unable to work the next, making her an unreliable employee. Tr. 479. These symptoms include inflammation in her neck, back, arms, wrists and hands, numbness in her fingers, stabbing nerve pains, sore knees, vertigo, insomnia, forgetfulness, "spelling and writing errors," and recurrent low grade fever. Tr. 60, 484-85. When her neck is inflamed, Plaintiff claims she cannot sit or lift anything; on some days, Plaintiff claims she cannot stand or walk for more than ten minutes without discomfort.*fn4 Tr. 60. Because of frequent nerve pains in her wrists and hands, Plaintiff claims that there are days when she cannot type or write for more than a few minutes. Id. As a side effect of the antibiotics Plaintiff takes, she periodically suffers diarrhea. Tr. 61. Plaintiff does not allege a mental impairment and denies being clinically depressed. Tr. 19-20.

Plaintiff lives alone, and sometimes socializes with friends. Tr. 479, 483. Plaintiff describes her daily activity as follows: "Wake often late (insomnia, exhaustion). Make breakfast so can take medication. Write at home if feel able, or else read. Shower/dress if shopping necessary. Cook if able or order in dinner." Tr. 158. She also performs light cleaning and ironing, goes outside approximately once every two days, and goes food shopping once a week if able. Tr. 160-61.


The record in this case contains voluminous medical evidence; however, here I will refer only to those medical opinions that are relevant to this appeal. I include both "treating source" and "non-treating source" opinions as those terms are defined by the Commissioner's regulations. See 20 C.F.R. §§ 404.1502, 416.902. Specifically, the discussion below will address the medical opinions that the ALJ expressly considered and relied upon in making his determination, as well as the sources to which Plaintiff now refers in arguing that the ALJ's decision was in error.

1. Treating Sources

a. Dr. Stanley Dziedzic

Dr. Stanley Dziedzic appears to have been Plaintiff's primary physician from 1995 to 2000. See Tr. 218, 305-06. The only evidence in the record from Dr. Dziedzic is a letter dated July 31, 2000 addressed "To Whom it May Concern." Tr. 305-06. The letter describes Plaintiff's medical history beginning in 1995. Tr. 305.

Dr. Dziedzic diagnosed Plaintiff with Lyme disease and prescribed Plaintiff a number of antibiotics in 1996 and 1997 with some improvement in her symptoms, but with some side effects including diarrhea. Tr. 305-06. He opined that the therapy had succeeded in partially eradicating the disease or at least in suppressing it periodically, but that "this unfortunate individual has continued to experience symptoms despite aggressive antibiotic therapy." Tr. 306. Such symptoms were intermittent and included fatigue, dizziness, stiff neck, sleep disturbances and tinnitus (ringing in ear). Id. The ALJ afforded Dr. Dziedzic's opinion limited weight because it was written more than a year before Plaintiff's alleged onset date. Id.

b. Dr. Kenneth B. Liegner

Dr. Kenneth Liegner, an internist and expert in tick-borne diseases (including Lyme disease), examined Plaintiff on several occasions between June 1999 and September 2003. Tr. 24, 458, 466. The record contains, inter alia, the following evidence from Dr. Liegner: (1) two detailed consultation reports, one dated June 2, 1999 (Tr. 210) and the second dated December 4, 2001 (Tr. 219); and (2) two letters addressed "To Whom It May Concern," one dated October 17, 2003 (Tr. 286) and the other dated November 28, 2006 (Tr. 458).*fn5

At their first meeting on June 2, 1999, Plaintiff complained of several symptoms including "[c]ognitive difficulties," insomnia, stiff neck and back, sore wrists, knees and forearm, vertigo, stabbing pain, muscle twitching, numbness, and low grade fever. Tr. 210. Plaintiff was in no acute distress but was concerned about her condition. Tr. 212. On examination, Plaintiff's neck was supple, but she complained of discomfort when attempting flexion. Id. Dr. Liegner also noted "definite" tenderness of the temporomandibular joint and bilateral occipital insertion. Id. Plaintiff's higher mental functioning was grossly intact and her affect was appropriate. Id. Dr. Liegner's impression was that Plaintiff had Lyme disease, carpal tunnel syndrome seemingly related to Plaintiff's Lyme disease, and some cognitive problems. Tr. 214. He recommended additional testing, including a brain single photon emission computed tomographic ("SPECT") scan. Id.

Dr. Liegner next examined Plaintiff on December 4, 2001. Tr. 219. He noted again that Plaintiff was in no acute distress. Tr. 220. Her chief complaints were forgetfulness, headaches, slight stiff neck, some left knee discomfort, left eye pain, muscle twitching, numbness, some balance difficulties, insomnia, tinnitus, some photosensitivity, temperature elevation, and slight vertigo. Tr. 219. Dr. Liegner noted Plaintiff complained of pretibial tenderness bilaterally but had no definite joint inflammation or complaints of tenderness with joint compression. Tr. 221. A Romberg test was negative and her gait was normal. Id. Plaintiff again exhibited tandem ataxia with her eyes closed (but not with her eyes open). Id. Her affect was appropriate and her higher mental functioning appeared intact. Id. Dr. Liegner concluded that Lyme disease was the correct diagnosis and that Plaintiff was doing reasonably well, though she had been exhibiting a monthly cluster of symptoms, including low grade fever, temporally coinciding with her menstrual cycle. Tr. 222.

On October 17, 2003, Dr. Liegner signed a letter addressed "To Whom it May Concern" in which he wrote that Plaintiff had "chronic active late stage neurological Lyme disease," which diagnosis is "well-documented." Tr. 286. The letter stated that "[a]s is often the case with late stage Lyme disease, Ms. Moulding's symptoms are cyclic and unpredictable. The patient may seem almost fine on a given day, only to relapse severely shortly thereafter." Id. Dr. Liegner described neck, back, arm and hand pain, which was often severe enough that Plaintiff could neither sit nor write without severe pain. Id. The letter then listed additional symptoms: "insomnia, mental confusion, tinnitus, stabbing nerve pains in her legs, neuropathy, vertigo and balance difficulties and skin rashes." Id. Finally, the letter noted that it was highly improbable that these symptoms would abate in the foreseeable future. Id.

The ALJ afforded persuasive weight to Dr. Liegner's 1999 and 2001 reports describing consultations with Plaintiff in detail, but only "very limited weight" to the 2003 letter, in part because the latter was not supported by objective medical evidence ...

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