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Pierre v. Astrue

January 6, 2010

EVELYN PIERRE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM AND ORDER

Evelyn Pierre has brought this action against Commissioner of Social Security Michael Astrue under 42 U.S.C. § 405(g), seeking review of Astrue's decision that she is not entitled to a period of Social Security Disability Insurance ("DDI") and Supplemental Security Insurance ("SSI") benefits under Titles II and XVI of the Social Security Act ("the Act"). The parties have cross-moved for judgment on the pleadings, the Commissioner seeking affirmation of his final decision that Pierre is not disabled, and therefore not eligible for DDI and SSI benefits, and Pierre seeking a reversal and remand for the sole purpose of awarding benefits.

Oral argument on the cross-motions was held on December 11, 2009. For the reasons that follow, Pierre's motion is granted, but only to the extent that the case is remanded for further proceedings, and the Commissioner's motion is denied.

BACKGROUND

A. Pierre's Claim of Disability

Pierre was born in Trinidad on May 23, 1948 and is now 61 years old. She attended school until she was 16 years of age, completing the equivalent of a seventh grade education. After living in the United States for 17 years, Pierre became a citizen in 1997. Pierre has six children who are all over the age of 18. For seven years, Pierre worked as a housekeeper at a large law firm. In 1996, Pierre worked for one year at an airport cleaning the waiting room and bathroom.

In June 1993, Pierre injured her back and neck in a slip and fall accident at work. She collected worker's compensation and returned to work in 1995. By February 1997, her spinal impairments no longer permitted her to work. She alleges that she was disabled beginning on March 3, 1997 and has not worked since that date. Since March 2005, Pierre has been treated by a psychiatrist at least once a month, and at times she has been treated twice a week. The psychiatrist has prescribed Zoloft. Pierre testified that she has anxiety and panic attacks twice a month that last for approximately 20 minutes.

Since the time of her 1993 injury, Pierre has taken a cab or a bus to her doctor's appointments. In order for her to board the bus, the bus must kneel. Since her injury, Pierre cooks once a week and requires assistance with the laundry. She is able to walk four to five blocks and stand for a half-hour to three-quarters of an hour. She can move from side to side but cannot bend or kneel. She can sit for only one-half to three-quarters of an hour before her back hurts.

B. Procedural History

Pierre's application for DDI and SSI benefits has an unnecessarily long procedural history. She filed it on March 30, 1997, alleging disability due to spinal impairments. The application was denied initially and again upon reconsideration. On September 15, 1999, after a hearing, ALJ Manuel Cofresi found that Pierre was not disabled and was therefore ineligible for SSI or DDI benefits. Twenty-eight months later, on January 18, 2002, the Appeals Council vacated ALJ Cofresi's decision and remanded the case for further proceedings. On December 14, 2002, Cofresi found again that Pierre was not entitled to benefits. Fifteen months later, on March 26, 2004, the Appeals Council vacated ALJ Cofresi's decision and remanded the case for further proceedings before a different ALJ. On November 10, 2005, ALJ Marilyn Hoppenfeld issued a decision denying benefits yet again. Nineteen months later, on June 7, 2007, the Appeals Council vacated ALJ Hoppenfeld's decision and remanded the case for further proceedings. On April 10, 2008, ALJ Hoppenfeld held another hearing regarding Pierre's claims. On July 24, 2008, ALJ Hoppenfeld found that Pierre was disabled as of May 23, 2003, but not prior to that date. Accordingly, Pierre was eligible for benefits as of May 23, 2003, but ALJ Hoppenfeld found that Pierre was not disabled on or before December 31, 2002, the date she was last insured. On March 17, 2009, 12 years after Pierre filed her application for benefits, the Appeals Council denied Pierre's request for review of the ALJ's partially favorable decision.

Pierre filed the complaint in this case on September 11, 2009, alleging that the Commissioner's decision is not supported by substantial evidence and that she is disabled.

C. The Medical Evidence

1. Dr. Susan Jensen -- Treating Physician

Pierre first saw Dr. Susan Jensen (also known as Zahalsky), a physician in the rehabilitation section of EAP Medical Services, on January 22, 1997. R. 424. At that time, Pierre was having difficulty standing, lifting and bending for more than 30 minutes. Id. Jensen saw Pierre again in February 1997. R. 351. Jensen noted again Pierre's tenderness in the back and her continued left antalgic gait.*fn1 Id. At that time, Jensen stated that Pierre was temporarily partially disabled. R. 352.

In February 1997, an MRI was taken of Pierre's spine. R. 430. The impression was that there was mild degenerative lumbosacral spondylosis at L5-S1.*fn2 Id.

After her examination in February 1997, Jensen treated Pierre almost continuously from August 1997 through October 1998. From August 14, 1997 through December 11, 1997, Jensen saw Pierre every month, except November. R. 331-32, 336, 341-42, 346-47. In each examination, Jensen noted that Pierre walked with an antalgic gait and that she continued to experience tenderness in the back. Id. In contrast to prior diagnoses, Jensen noted as early as August 1997 that Pierre was permanently partially disabled. Id.

Jensen saw Pierre again on January 15, 1998. R. 253. In her evaluation, she indicated that Pierre received therapy three times a week and was still having difficulty cooking, standing, sitting, bending and lifting. Jensen also noted that Pierre had not worked since March 1997. Id. Pierre had a "wide based gait that is bilaterally antalgic." R. 254. She had difficulty doing heel and toe walking and can squat and rise 50 percent of the way down whereas previously she could go ten percent of the way down. Id. There was less tenderness in the left lumbosacral paraspinal muscles than previously, but still severe tenderness in the left sacroiliac joint.*fn3 Id. There was still tenderness in the deep hip abductor muscles, and a stretch test revealed pain running down the right thigh in a radicular fashion. Id. Jensen stated that Pierre was permanently partially disabled and that she would never be able to return to the work she had done before. R. 255. Jensen recommended physical therapy. Id.

Jensen saw Pierre again on March 4 and April 3, 1998. R. 316, 321. Pierre was feeling worse in the one month interval between the visits. Id. Jensen's observations remained substantially the same; she noted there was tenderness in Pierre's back and that she was permanently partially disabled. R. 317.

On May 7, 1998, Jensen saw Pierre again. R. 262. Pierre had "terrible difficulty getting from sit to stand and holds onto her left sacroiliac joint as she arise[s] from a chair." R. 263. She was walking with a gait due to severe pain, and noted continued tenderness in various areas of her neck and back. R. 263-64. Pierre's physical exam was "highly abnormal in the neck area." R. 265. Jensen stated again that Pierre was permanently partially disabled. R. 264.

Jensen saw Pierre on June 10, 1998 and indicated that Pierre's symptoms had worsened since May 1998. R. 304. Although Jensen noted several improvements, she also noted that Pierre continued to experience tenderness in her back and neck. R. 305-06. Jensen saw Pierre on July 21, 1998 and again August 26, 1998 and her diagnosis remained substantially the same. R. 294-301. In her evaluations for June, July and August, Jensen stated that Pierre was permanently partially disabled. R. 294, 301, 307. In one instance, she noted that she could not imagine any work that Pierre would be capable of performing. R. 294.

On July 28, 1998, Jensen completed a Questionnaire for the Division of Disability Determination of the New York State Office of Temporary and Disability Assistance. R. 268.

In the questionnaire, Jensen noted again that there was inflammation and derangement in Pierre's left sacroiliac joint. Id. Jensen also noted that Pierre had chronic ...


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