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Rivera v. Astrue

April 8, 2010


The opinion of the court was delivered by: Charles J. Siragusa United States District Judge



This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security ("Commissioner" or "Defendant"), which denied plaintiff Maria Rivera's ("Plaintiff") application for supplemental security income ("SSI") benefits. Now before the Court is Defendant's motion [#11] for judgment on the pleadings. For the reasons that follow, Defendant's application is denied, and this matter is remanded for further administrative proceedings.


On or about November 30, 2004, Plaintiff applied for SSI benefits, claiming to be disabled due to high cholesterol, high blood pressure, depression, asthma, and difficulty concentrating. (137).*fn1 The Commissioner denied the application. On August 26, 2008, a hearing was held before Administrative Law Judge Marilyn Zahm ("ALJ"). Plaintiff appeared at the hearing with her attorney. On September 5, 2008, the ALJ issued a decision denying benefits. (14-25). On January 9, 2009, the Appeals Council denied Plaintiff's request for review. (2-4). On March 4, 2009, Plaintiff commenced the subject action, proceeding pro se. Subsequently, Defendant filed the subject motion for judgment on the pleadings. On December 1, 2009, the Court issued a Motion Scheduling Order [#12], directing, inter alia, that Plaintiff file and serve a response on or before January 15, 2010. To date, Plaintiff has not served a response.


Plaintiff was forty-nine years of age at the time of the hearing, and had completed the eleventh grade of high school, in Puerto Rico. (521-523). Plaintiff's last employment was nineteen years prior to the hearing, when she worked in a clothing factory. (523). Plaintiff stated that she did not remember looking for employment since that time. (Id.).

At the administrative hearing , Plaintiff stated the she spends her days watching television. She testified that she starts to perform chores, but never finishes them. (524). Plaintiff stated that she feels sad and desperate every day. (Id.). Plaintiff indicated that she experiences physical pain when she performs chores or when she walks longer than ten minutes. (525, 531-532). Plaintiff maintained that she cannot sit longer than five minutes without having pain. (533). Plaintiff stated that she can lift less than five pounds. (534). Plaintiff also indicated that she hears voices everyday. (538). Plaintiff has been convicted, and has served nine months in jail, for petit larcency. (529-531). Plaintiff admits that she shoplifted to get money to buy illegal drugs. Plaintiff testified that she had not used marijuana for two years, and had not used crack cocaine for approximately 18 months. (527). However, as discussed further below, Plaintiff used marijuana and crack cocaine as late as September 2007, ten months prior to the hearing.

At the administrative hearing, the ALJ took testimony from Peter Manzi, a vocational expert ("the VE"). The ALJ first asked the VE to assume a person who could perform medium work, "simple work, no production rated jobs, occasional contact with others." (541). The VE stated that such a person could perform the following jobs: "laundry worker II, 361685018, medium, unskilled" (Id.); and "cleaner, furniture, 709687014, medium, unskilled." (542). Next, the ALJ asked to VE to consider that the hypothetical claimant also could not speak English, and the VE stated that such a person could still perform the jobs of laundry worker and furniture cleaner. (Id.). Moreover, the VE indicated that such a person could perform light jobs, such as cleaner/housekeeper and cafeteria attendant. (542-543). The VE further stated that none of the jobs that he identified involved constant exposure to respiratory irritants. (543).


Plaintiff's medical history was summarized in Defendant's brief, and need not be repeated here. It is sufficient for purposes of this Decision and Order to note the following facts. Plaintiff takes various medications, including Wellbutrin and Paxil for depression, Lipitor for high cholesterol, albuterol for asthma, and lisinopril for hypertension. (142, 144). Plaintiff's medical providers include Tariq Abokamil, M.D. ("Abokamil"), psychiatrist Patricia Pielnik, M.D. ("Pielnik"), and Felix Marquez ("Marquez"), a social worker employed at Pielnik's office.

On July 21, 2003, Pielnik indicated that she had been contacted by Plaintiff's attorney, "requesting possible change" in a report prepared by Marquez, since "it was not supportive of disability." (345).

On March 16, 2005, Plaintiff was examined by John Schwab, D.O. ("Schwab"), an non-treating, examining consultative doctor. Schwab diagnosed Plaintiff with Type 2 diabetes mellitus, asthma, and depression. (204). Schwab's prognosis was fair, and he opined that Plaintiff had no physical work restrictions, except that she should avoid "any activity which triggers her asthma." (205).

On March 16, 2005, John Thomassen, Ph.D. ("Thomassen"), performed a psychiatric evaluation. Thomassen was a non-treating independent examiner. Thomassen found that Plaintiff's affect was anxious, and her cognitive functioning was "in the borderline to mild range of mental retardation." (214). Thomassen stated that Plaintiff's insight and judgment were questionable, and that her attention, concentration, and memory, were impaired. (Id.). Thomassen diagnosed Plaintiff with cognitive disorder not otherwise specified, alcohol dependence in full remission, cocaine dependence in full remission, and "major depression, single-episode, moderate." (215). Thomassen stated that Plaintiff had significant symptoms of depression, some cognitive limitations, and a history of substance dependence. (Id.). Thomassen's prognosis was "guarded given [Plainitff's] ongoing symptoms despite ongoing appropriate treatment." (Id.). With regard to Plaintiff's ability to work, Thomassen wrote:

Ms. Rivera should be able to perform rote tasks and follow simple directions, but is likely to have difficulties doing any complex tasks. She is likely to have problems relating with co-workers and coping with stress. Allegations of psychiatric disability appear consistent with examination findings. (214) (emphasis added).

On May 9, 2005, Pielnik performed a psychiatric evaluation. (361-365). Pielnik noted that Plaintiff had been under her care since December 2000. (361). Plaintiff complained of having "flashbacks" concerning "abuse" that occurred during her life. (362). Plaintiff stated that she was abused physically and emotionally by her grandparents and by the father of her children. Plaintiff reported having three daughters, and that she lived with the two youngest, who were fourteen and fifteen years of age, respectively. Plaintiff stated that until recently, she had also taken care of a granddaughter, who is the child of her oldest daughter, age twenty-six. Plaintiff stated that she was sad because she was no longer caring for her granddaughter. Plaintiff's mood and affect were depressed. (364). Plaintiff reported having auditory and visual hallucinations. Plaintiff stated that she wanted to die, but that she would not kill herself. (Id.). ...

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