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Nalia Milien v. Michael J. Astrue

December 16, 2010


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



Nalia Milien seeks review, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), of the Commissioner of Social Security's denial of her application for a period of disability and disability insurance benefits. The parties have cross-moved for judgment on the pleadings. I heard oral argument on December 3, 2010. Because the Commissioner's decision is not supported by substantial evidence in the record, I deny the Commissioner's motion, grant Milien's motion, and remand for further proceedings.


On September 12, 2007, Milien filed an application for disability and disability insurance benefits, alleging that she had been disabled since June 27, 2007.*fn1 Her claim was denied on January 28, 2008. Milien requested and received a hearing before Administrative Law Judge ("ALJ") Manuel Cofresi, at which she appeared and testified on May 13, 2009. No medical or vocational expert testified at the hearing.

On July 31, 2009, ALJ Cofresi concluded that Milien was not disabled within the meaning of the Social Security Act on the ground that she retained the residual functional capacity to perform limited light work as defined in 20 C.F.R. § 416.967(b). The Appeals Council denied Milien's request for review on March 29, 2010, making the ALJ's adverse decision the final decision of the Commissioner. See DeChirico v. Callahan, 134 F.3d 1177, 1179 (2d Cir. 1998).

A. The Plaintiff's Statements and Testimony

Milien was born in 1957 and received an eighth grade education in her native

Haiti. She immigrated to the United States in 1983. She worked in 1984 and 1985, and the following year she began working as a school bus escort, assisting disabled children in getting on and off school buses and carrying their school bags. Milien held that position from 1986 until the alleged onset of her disability in 2007. She lived independently prior to the onset date, but now lives with a cousin in Queens. Milien has six children, of whom five are adults; the sixth, a 14-year-old daughter, was sent to live with Milien's 25-year-old son in Atlanta when Milien's condition worsened. She is separated from her husband.

Milien suffers from HIV, hypertension, fatigue, obesity, and depression. Her HIV and hypertension are well-controlled by medication, but the medications' side effects have negatively impacted her health. She now regularly takes Atripla, amlodipine-benazepril, hydrochlorothiazide ("HCTZ"), Norvasc, and Sustiva. Her current symptoms arose shortly after a change in her HIV medication in the first half of 2007, which added Atripla to her daily regimen.*fn2 She ceased working shortly after the symptoms arose, because she was "too tired to work [and] too weak to continue working." (R. 114.)

In her testimony at the hearing before ALJ Cofresi, Milien complained that the medications prescribed by her doctor in early 2007 caused her to be "so sedated [at night] that if there were a fire she did not believe she would be able to wake up." (Milien Mem. at 3; R. 33.) She claims the medications also cause severe fatigue that persists for two to three hours after awakening each morning, and leaves her "sleepy" all day. (R. 33-34.) She noted at the hearing before ALJ Cofresi that she had skipped her medicine the night before in order to be sufficiently alert for the hearing. (R. 34.)

Milien is dizzy throughout the day, which prevents her from sitting more than 30-40 minutes at a time. (R. 29.) It also prevents her from taking the subway, because she feels it would be unsafe for her to exit at her destination in that condition. (R. 28.) Her dizziness began after the medication switch in early 2007. (R. 25.)

Milien testified that she is able to perform basic activities of personal maintenance, such as grooming, washing, and hairdressing. However, her dizziness and fatigue make her unable cook, clean, or shop. She can use public transportation, but is restricted to travel on the bus. (R. 27-28.) Her social activity is adequate, including weekly church attendance and meetings with family and friends.

B. Medical Evidence

Milien has consistently been diagnosed with HIV, hypertension (poorly controlled), obesity, diabetes mellitus type 2, and depression. Other diagnoses throughout the relevant period have included fatigue (medically and virally induced), pterygia,*fn3 conjunctivitis, and microcytic anemia. She has also been treated for various opportunistic infections and other conditions apparently related to her HIV, including pneumonia, cryptococcus, neutropenia, thrombocytopenia, lymphocytosis, and hemoptysis.

Milien's medical record begins with an admission to Long Island Jewish Hospital on October 17, 2005, for treatment of hemoptysis. (R. 145.) At the time she was taking the prescription drugs Norvasc, Sustiva, Trivada, Lisinopril, and HCTZ. (Id.) An x-ray taken at the hospital revealed an opacity in the right lung "which may represent atelectasis,*fn4 confluence of shadows, loculated fluid or even a mass." (R. 156.)

On October 28, 2005, shortly after being released from the hospital, Milien was examined by her treating physician, Dr. Yvan Mardy.*fn5 Mardy had treated her on a monthly basis since February 12, 2001, and has continued to treat her through at least April 2009. (R. 157,232.) Mardy's primary diagnosis was hypertension, and he further diagnosed Milien as suffering from cryptococcosis, apparently based on the lung opacity. (R. 157.) He also diagnosed unspecified limitations resulting from Milien's conditions, including standing, walking, lifting, carrying, sitting, reaching, pushing, pulling, and driving. (R. 158.)

On February 9, 2006, Milien was evaluated by state agency psychologist Rochelle Sherman. Sherman noted that Milien had taken a leave of absence for health reasons in October and November 2005, and that though she had since returned to work, she was "having difficulty completing work tasks." (R. 159.) Milien displayed an unremarkable appearance, had "clear, fluent, and intelligible" speech with no evidence of thought disorder, a full range of affect, and a neutral mood. (R. 160.) Sherman also observed "mildly deficient" attention and concentration (id.), and "mildly impaired" memory (R. 161). Milien had below average cognitive functioning, but "good" insight and judgment. (Id.) She was independent in her living and able to follow directions, but had difficulty coping with stress. (Id.) Sherman concluded that her results "appear to be consistent with psychiatric and cognitive problems, ...

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