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Desiree Ellis, Pro Se v. Michael J. Astrue

March 30, 2011


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


Pro se Plaintiff Desiree Ellis filed the instant appeal of a decision by the Commissioner of Social Security that concluded Plaintiff was not disabled from May 10, 1999 through August 10, 2003. On March 29, 2010, the Commissioner moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), seeking an affirmation of the denial of benefits. On April 22, 2010, Plaintiff submitted an affidavit in opposition to the Commissioner‟s motion. For the reasons set forth below, the Defendant‟s motion is denied, and the case is remanded to the Commissioner for further evidentiary proceedings.


A.Procedural History

On August 9, 2000, Plaintiff filed an application for supplemental security income ("SSI") under the Social Security Act (the "Act"). On February 8, 2001, the Social Security Administration denied the claim. On February 15, 2001, Plaintiff requested a hearing by an Administrative Law Judge ("ALJ"). The hearing was held before ALJ Jane Polisar on February 14, 2002. (Administrative Record ("R.") at 535-47.) By decision dated February 22, 2002, ALJ Polisar concluded that Plaintiff was disabled within the meaning of the Act from May 10, 1999 through August 31, 2000. (R. 32-41.) On May 8, 2002, ALJ Polisar amended the decision and extended the period of disability through September 1, 2000. (R. 42-45.) On June 13, 2002, Plaintiff requested an Appeals Council review because she wanted the disability time period to remain open.*fn1 (R. 71-74.) By order dated December 18, 2003, the Appeals Council vacated the ALJ Polisar‟s decision and remanded the case for further proceedings. (R. 29-31.)

On August 28, 2007, after a hearing at which Plaintiff appeared without counsel, ALJ Polisar issued a decision finding that Plaintiff was not disabled from May 10, 1999 through August 10, 2003. (R. 10-19.) On August 26, 2009, the ALJ‟s decision became the Commissioner‟s final decision when the Appeals Council denied Plaintiff‟s request for review. On October 1, 2009, Plaintiff filed the instant action, pro se, seeking judicial review of the denial of benefits.

B.Non-medical and Testimonial Evidence

Plaintiff was born on December 16, 1964 and received a high school diploma in 1982. (R. 104, 114.) After high school, Plaintiff worked in sales at K-Mart for approximately two weeks, and as a seasonal laborer at Tell Chocolate for approximately five months. (R. 109.)

In 1998, Plaintiff began working in the shirt unit of the dry cleaning store, Cleanorama.

(R. 108, 109.) At the dry cleaning store, Plaintiff lifted wet shirts and bags of laundry, washed, marked, sorted, and boxed shirts, repaired buttons, and placed shirts on hangers. (R. 567.) Plaintiff frequently lifted items weighing twenty-five pounds and, occasionally, lifted items weighing up to fifty pounds. (R. at 109.) On May 10, 1999, a toxic dry cleaning agent, PERC, allegedly spilled onto the backs of Plaintiff‟s legs. Plaintiff then wiped up the liquid with her hands thinking that it was just water. (R. 550.) Plaintiff stated that she screamed as a result of the burning pain in her hands, and had an allergic reaction that continues to affect her hands. (R. 115, 550.) However, Plaintiff also stated that her legs were not affected. (R. 550.) Plaintiff asserts that she is disabled as a result of the incident.

On June 5, 2000, as part of her initial application for SSI benefits, Plaintiff completed a Disability Report. (R. 107.) In this report, Plaintiff described her illness as a "chemical and environmental allergy," which causes her hands to break out in hives, burn, and run with pus.

(R. 108.) Plaintiff further stated that she attempted to return to work after the incident, but could not, due to the condition of her hands. (Id.)

On August 22, 2000, Plaintiff completed a claimant questionnaire provided by the New York State Office of Temporary and Disability Assistance, Division of Disability Determinations. (R. 125.) Plaintiff stated that cooked once a day and shopped for groceries only once a month. (R. 125, 128.) Plaintiff stated that she lived with her three children at the time of the incident and that her eight-year-old daughter assisted her in performing household chores such as mopping and washing dishes. (R. 125.) Plaintiff stated that she did not need assistance traveling and that she used public transportation. (R. 126.) Plaintiff described her problem as a chemical and environmental allergy that resulted from a chemical spill that affected her hands.

(R. 126.) Plaintiff asserted that both hands ached often and burned constantly, and, as a result, it was difficult to clean, cook, shop, wash herself, and fill out paperwork. (R. 127-29.) Plaintiff stated that the Elocon cream and Benadryl, which she ingested twice a day, did not relieve the pain. (R. 128.) Plaintiff added that she could not use the creams everyday because they "backfire" and the Benadryl made her tired. (R. 127.)

At a hearing held on February 14, 2002, Plaintiff testified that it was difficult for her to pick up a pen and sign her name because her hands would crack and bleed. (R. 542.) Plaintiff testified that she had difficulty cooking food, cleaning the house, and doing laundry. (R. 545.) She further testified that she was depressed because she had difficulty bending her fingers and lifting objects. (R. 542.) Plaintiff stated that she suffered pain in her hands for several months after the incident. (R. 543.) From April to May 2000, Plaintiff attempted to work again at the dry cleaners, and she wore both plastic and winter gloves to protect her hands. However, this attempt proved unsuccessful because she began experiencing problems with her hands. (R. 544.) When asked if there was anything else that she would like to tell the ALJ about her condition, Plaintiff responded that she "[s]uffered -- the worst part is over. That‟s all I can say." (R. 546.)

At the hearing, the ALJ mentioned a document that Plaintiff signed while she was with her attorney but outside the presence of the ALJ. (R. 541.) The ALJ mentioned only that the document regards the disability time period, but did not read the contents of the document into the record. The ALJ also stated, "Thank you. I can never ask for it, but I appreciate it very much. Thank you." (Id.)

At the hearing held on August 23, 2007, after the Appeals Council remanded the case, Plaintiff testified that she went back to work at the dry cleaning store from February 17, 2000 through April 4, 2000. (R. 566.) Plaintiff testified that she had to quit because she "couldn‟t do it no more." (R. 568.) Plaintiff testified that her nieces and nephews helped out with the household chores during the disputed time period. (R. 576.) Plaintiff again testified that she was in a "depressed mood," although she stated that she was not seeing a psychiatrist at that time.

(R. 577.) Plaintiff testified that, during the disputed time period, her hands were bleeding, hurting, itching, and burning. (R. 573.) When asked about applying for jobs during this time period, Plaintiff testified that she worked at K-Mart for a short period but had to quit because of the negative effects of the clothing dye on her hands. (R. 578.)

Plaintiff also testified that she applied for a job with the United States Postal Service in March of 2002, for which she was required to get a physical examination. (R. 579, 580.) Plaintiff testified that she gave the United States Postal Service a disability letter and then waited for a response, but never received one. (R. 579.) Plaintiff further testified that she applied for many other jobs stating, "I‟m always applying for something." (R. 580.) However, she did not give specific examples of other job applications. (R. 580, 581). Additionally, Plaintiff described her seasonal job at Tell Chocolate, where she packed, labeled, and filled chocolate boxes.

(R. 583-84.)

At the hearing, the ALJ discussed the document that Plaintiff signed at the February 14, 2002 hearing, and read the document into the record. (R. 564.) The document stated: "I Desiree Ellis, Social Security number, agreed that as of August 31, 2000 my condition was no longer disabling. . . ." (Id.) When questioned about the document, Plaintiff seemed confused, stating, "I were, was aware of what I was signing at that time. But like I said before I was not aware because when we out and I discussed it after everything was over, and I found out that later on that is had stopped. I called them back." (R. 565.)

At the end of Plaintiff‟s testimony, in response to the ALJ‟s question as to whether Plaintiff had anything further to add to help understand the case, Plaintiff testified, "From that period, from "99, that was the worstest time. That was the worstest time. Because that‟s when everything finally really started up, really flared up." (R. 586.)

C.Vocational Evidence

Vocational expert ("VE") Miriam Green testified at the hearing on August 23, 2007. The VE classified Plaintiff‟s past work experience according to a numbering system described in the Directory of Occupational Titles, published by the United States Department of Labor. Additionally, the VE classified Plaintiff‟s past work according to the Specific Vocational Preparation levels which indicate how long it may take to learn the job techniques and skills. The VE stated that Plaintiff‟s past work experience as a laborer packer classified as a "medium" in the Directory, and as a light Specific Vocational Preparation level two (up to one month).

(R. 586, 587.) The VE further testified that Plaintiff‟s past experience at the dry cleaners was also a light level two or three, but because Plaintiff supervised and distributed work to other people, the level increased to four (between three to six months). (R. 587.) The VE indicated that the skills acquired by Plaintiff in these capacities are not transferable to other types of work.

(R. 587.)

The VE identified jobs that a claimant of Plaintiff‟s age (younger), education (high school diploma), work history (general laborer and presser), and limitations (avoid exposure to chemicals and extensive exposure to water) could perform. According to the VE, a person fitting this description could perform the ...

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