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Judith Day v. Michael Astrue

April 18, 2011


The opinion of the court was delivered by: Ausa Hurley, Senior District Judge:


Plaintiff Judith Day ("Plaintiff") commenced this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social Security (the "Commissioner" or "Defendant") which denied her claim for disability benefits. Presently before the Court are Defendant's motion and Plaintiff's cross-motion for judgment on the pleadings. For the reasons discussed below, the decision of the Commissioner is reversed and the matter is remanded for further proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g).


I. Procedural Background

Plaintiff applied for Social Security disability insurance benefits on July 23, 2003, alleging disability commencing on September 11, 2001, due to headaches, dizziness, depression, and anxiety. (Transcript (hereafter "Tr.") 59-62.)*fn1 The claim was denied initially on October 2, 2003. (Tr. 43-50.) Plaintiff timely requested a hearing before an administrative law judge ("ALJ") and a hearing was held before ALJ David Nesnewitz on September 20, 2005, with a supplemental hearing held on April 17, 2006, at which Plaintiff appeared represented by counsel. (Tr. 599-664, 665-761.) The ALJ issued a decision on August 17, 2006, finding that Plaintiff was not disabled within the meaning of the Social Security Act. (Tr. 24-34.) Plaintiff requested review by the Appeals Council ("AC"). (Tr. 8.) By notice dated November 14, 2008, the AC denied Plaintiff's request, rendering the ALJ's decision as the "final decision" of Defendant. (Tr. 6-9.)

II. Factual Background

A. Non-Medical Evidence

Plaintiff was born on April 25, 1969, and was thirty-six years old at the time of the hearings. (Tr. 667.) Plaintiff is a college graduate who worked as an office assistant from 1992 to 1994, a data entry operator in 1993, an information systems trainer from 1994 to 1996, and a computer operator from 1996 to 2001. (Tr. 85-87, 96-103, 693.) She is insured for benefits through December 2007. (Tr. 74.)

Plaintiff testified that from 1996 to 2001, she worked for Fuji Bank located on the 82nd floor of Two World Trade Center. (Tr. 676.) On the morning of the terrorist attack on September 11, 2001, Plaintiff was working in Fuji Bank's ancillary offices at One World Trade Center and was evacuated from the building. (Tr. 677.) Plaintiff stopped working at Fuji Bank in December 2001 because she became "very sick" after the events of September 11th. (Tr. 679.) She had "problems breathing, migraines, flashbacks, [and] coughing." (Tr. 680.) She next returned to work for less than three months in 2005 as a retail representative but could not handle the stress and pressure of the job, even though she had worked for that company previously from 1999 to 2000. (Tr. 605-07, 693-94.) She testified that she has not looked for employment since that time because she "doesn't want to be bothered by people." (Tr. 699.) Her ability to function depends on "what's in [her] mind, what [she's] thinking, what's getting frustrated. " (Tr. 701). She described her symptoms further as "[w]aking up from a nightmare," "re-living the whole situation[]," and "[t]he smell of burning flesh." (Tr. 701). Because she has trouble sleeping, she cannot focus or concentrate. (Tr. 622.)

Plaintiff testified that on a typical day, she wakes up, eats, showers, watches television, reads, and uses her computer. (Tr. 636-39.) She does her own grocery shopping, cooking, and light cleaning. (Tr 692.) She occasionally goes to church "[w]hen the churches are empty." (Tr. 639.) She has panic attacks at least once a week during which she gets "hot, sweaty, [has] difficulty breathing, [has] bowel movement[s], . . . lose[s] control of [her] legs, and . . . feel[s] like [she's] going to faint." (Tr. 647.) She had a social life prior to September 11th but her post-September 11 behavior caused her and her husband to separate in 2002. (Tr. 651, 686.) She lives near an airport and is unable to move due to finances. (Tr. 646.)

B. Medical Evidence

1. Dr. William A. Ankobiah - Internist

Dr. William A. Ankobiah, an internist with the Rosedale Medical Office, first examined plaintiff on September 12, 2001, the day after her experience at the World Trade Center. (Tr. 201-03, 225-26, 247-49.) Plaintiff complained of anxiety and difficulty breathing. (Tr. 201.) Examinations of the heart, abdomen, skin, spine, and upper and lower extremities were normal. (Tr. 202.) Mild wheezing was found in the lungs. (Tr. 202.) Plaintiff was diagnosed with asthmatic exacerbation and post traumatic stress disorder ("PTSD"). (Tr. 202.) The recommended treatment plan was for psychotherapy and a prescription for Buspar, an anti-anxiety medication. (Tr. 203.) In addition, Dr. Ankobiah's office notes dated through November 1, 2001 document that Plaintiff was prescribed various medications for her asthma and anxiety. (Tr. 231, 236, 238-48.) In a letter dated October 15, 2001, Dr. Ankobiah indicated that Plaintiff "has been totally disabled from 09/11/2001 until present" and has been advised to "refrain from work activities until 12/12/2001." (Tr. 257.)

2. Dr. Henry Beaulieu - Psychiatrist

Dr. Henry Beaulieu first examined plaintiff on November 27, 2001. (Tr. 434.) (Tr. 321-323, 431-433). His records reveal that he treated Plaintiff regularly for PTSD from November 2001 to late 2002, including prescribing anti-anxiety medication. (Tr. 431-43.) In a State workers' compensation board doctor report form dated October 23, 2002, Dr. Beaulieu opined that plaintiff was disabled due to PTSD. (Tr. 435.)

3. Dr. Jean Claude-Compas - Psychiatrist

Dr. Claude-Compas, a psychiatrist, performed a physical exam on May 13, 2002. (Tr.334-35.) He noted that Plaintiff "was in distress but alert, responsive [and] oriented to time, place and person." (Tr. 334.) He diagnosed Plaintiff with PTSD and dyspnea [i.e., shortness of breath] secondary to exposure to dust and smoke" and prescribed anti-anxiety medication. (Tr. 335.) The record contains multiple workers' compensation doctor report forms signed by Dr. Compas, as well as "To Whom It May Concern" letters, spanning from November 28, 2001 through March 11, 2004. These forms and letters note Plaintiff's complaints of depression, anxiety, mood changes, memory loss, headaches, and difficulty breathing, as well as Dr. Compas's diagnoses of PTSD, headaches, dyspnea, respiratory difficulties, depressive disorder, and smoke inhalation. (Tr. 174-191, 195-196, 347, 349, 351-354, 356-363, 382-384, 386-388, 418, 420-421, 427.) Dr. Compas repeatedly indicated that Plaintiff's prognosis was guarded and that she could not resume her work activities as of that time. (Id.)

4. Dr. Vilor Shpitalnik - Psychiatrist

Dr. Shpitalnik, a psychiatrist, examined plaintiff on June 17, 2002. (Tr. 204-206.) Plaintiff complained of "insomnia, depressed mood most of the day almost every day, [and] flashbacks with intrusive scenes of [September 11th]." (Tr. 205.) Dr. Shpitalni observed that Plaintiff was restless, sad, and apprehensive and that she "broke down in crying spells several times." (Tr. 205.) He also noted that although Plaintiff's cognitive functioning was alert and oreinted, her attention and concentration were "limited." (Tr. 205.) He diagnosed PTSD and asthma and indicated that she needed more psychiatric treatment. (Tr. 206.)

5. Dr. Yolette J. Williams -- Psychotherapist

In a letter dated September 30, 2003, Dr. Williams reported that Plaintiff had been under the psychiatric care of Dr. Beaulieu, who became ill and died in April 2003. (Tr. 444.) Dr. Williams indicated that although Plaintiff had attained positive results from Dr. Beaulieu's treatment, with whom she had "developed a good working alliance," she had currently "regressed a great deal emotionally," experiencing "generalized phobic reactions accompanied by startled responses." (Tr. 444.) Dr. Beaulieu's death "presented a real set back" for Plaintiff, who could not even bring herself to the office for a couple of months. (Tr. 444.) Dr. Williams reported that Plaintiff had "moderate loss of memory [and] poor concentration and ability to focus." (Tr. 444). Dr. Williams also noted that Plaintiff "has difficulties performing routine tasks such as opening her mail, filling out forms, and paying her bills." (Tr. 444.)

5. Dr. Roger Rahtz - Psychologist

At the request of the Commissioner, psychiatrist Dr. Roger Rahtz examined Plaintiff on September 3, 2003. (Tr. 120-121.) Plaintiff reported no psychiatric hospitalizations, and was presently seeing a therapist, but was not on psychiatric medications. (Tr. 120.) She reported depression, insomnia, loss of interest and energy, social isolation, and poor concentration. (Tr. 120.) On mental status examination, plaintiff appeared anxious, and her speech was relevant and coherent. (Tr. 120.) Delusions and hallucinations were absent, but depressive and anxious preoccupations were present. (Tr. 120.) Plaintiff reported that she lived with her husband and spent her days reading or going to church. (Tr. 120.) She did a few chores at home and had no social contacts. (Tr. 120.) Dr. Rahtz diagnosed PTSD with depressive and anxious symptoms. (Tr. 120.) He opined that Plaintiff may benefit from medications. (Tr. 120).

6. Dr. Antonio L. De Leon - Internist

At the request of the Commissioner, internist Dr. Antonio De Leon examined plaintiff on September 3, 2003. (Tr. 115-116.) Plaintiff reported having asthma since 1999 with no hospitalizations and was treating with various inhalers. (Tr. 115.) Plaintiff stated she had coughing with shortness of breath four times per month. (Tr. 115.) She also reported PTSD, depression, insomnia, and no suicidal ideation. (Tr. 115.) She traveled by bus for the appointment, and reported she was able to walk one block. (Tr. 115.) Plaintiff reported that she lived with her husband, shopped on her own, cooked, and spent the day on her computer. (Tr. 115.) Examination results were all within normal limits, including results of a pulmonary function test. (Tr. 115-119.) Dr. De Leon opined that plaintiff was able to sit without limitation, and her ability to walk, stand, carry, and lift were mildly limited due to asthma. (Tr. 116.)

7. Dr. S. Bonete - State Agency Psychiatrist

State agency psychiatrist Dr. S. Bonete completed a Psychiatric Review Technique form ("PRTF") on September 30, 2003 (Tr. 132-145). He found no limitations in activities of daily living or social functioning, and no episodes of decompensation.*fn2 (Tr. 142.) He found mild limitations in maintaining concentration, persistence, and pace. (Tr. 142.) In a Mental Residual Functioning Capacity ("RFC") assessment, Dr. Bonete found no significant limitations in most areas of understanding and memory; sustained concentration and persistence; social interaction; and adaptation. (Tr. 122-23.) He did find moderate limitations in ability to maintain attention and concentration for extended periods; perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; and to set realistic goals or makeindependent plans. (Tr. 122-124.) Dr. Bonete opined in the RFC assessment that plaintiff was capable of working in a low stress setting. (Tr. 124.)

8. Dr. Martha Abraham - Psychiatrist

Dr. Martha Abraham, a psychiatrist, submitted a report dated March 11, 2004. (Tr. 344). Dr. Abraham stated that Plaintiff reported anxiety, flashbacks, and difficulty concentrating. (Tr. 344.) Mental status examination was remarkable for severe anxiety. (Tr. 344.) Judgment was found to be good and Plaintiff seemed to have good insight into her condition. (Tr. 344.) Dr. Abraham opined that Plaintiff presented with "moderate - severe" PTSD, however, she maintained decisional capacity regarding settlement of her workers' compensation case. (Tr. 344.) In State workers' compensation board doctor report forms dated October 7, 2003 and March 11, 2004, Dr. Abraham opined that plaintiff was disabled due to PTSD. (Tr. 412, 417.)

9. Dr. Carlos Tejera - Psychiatrist

On May 13, 2004, Plaintiff met with Veronica Cruz, CSW and Ms. Cruz completed a "Behavioral Health Services" intake form and assigned Plaintiff a Global Assessment of Functioning ("GAF") of 50.*fn3 (Tr. 471-79.) Subsequently, Plaintiff was examined by psychiatrist Dr. Carlos Tejera on July 22, 2004. (Tr. 154.) Dr. Tejara noted that Plaintiff's attention and awareness was lethargic, and her thought process was normal. (Tr. 157-58). He further reported that her mood was depressed. (Tr. 159.) Plaintiff's orientation, immediate recall and retention,memory, fund of knowledge, concentration/attention, abstract versus concrete thought, cognitive ability, judgment, insight, and impulse control were all normal. (Tr. 159.) Dr. Tejara's primary diagnosis was PTSD and Plaintiff's GAF was listed as 55. (Tr. 161.)

In an August 31, 2005 report, Dr. Tejera again listed Plaintiff's GAF as 55. (Tr. 197.) He noted numerous symptoms including loss of interest in activities, lower energy, anxiety, difficulty concentrating, recurrent intrusive recollections of traumatic events, mood disturbances, apprehensive expectation, emotional withdrawal, vigilance, and sleep disturbance. (Tr. 198.) He found moderate limitations in activities of daily living, social functioning, and concentration, persistence, and pace. (Tr. 199.) He opined that Plaintiff's impairments would cause more than four absences from work per month. (Tr. 200.) He noted her current medications as Zoloft, Trazadone, and Xanax. (Tr. 207, 555.) He stated that Plaintiff had no useful ability to understand, remember, and carry out detailed instructions, or maintain concentration for extended periods. (Tr. 210, 558.) He also stated that she had ...

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