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Stephanie Murray v. Michael J. Astrue

August 29, 2012


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


Plaintiff Stephanie K. Murray filed applications for supplemental security income and disability insurance benefits under the Social Security Act (the "Act") on November 6, 2007 and August 22, 2008, respectively, alleging a disability that began on January 31, 2007. Plaintiff's application was denied, and on reconsideration, Plaintiff appeared pro se and testified at a hearing held before Administrative Law Judge Hazel C. Strauss ("ALJ") on October 27, 2009. By a decision dated March 8, 2010, the ALJ concluded that Plaintiff was not disabled within the meaning of the Act. On October 7, 2010, the ALJ's decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review.

Plaintiff filed the instant appeal seeking judicial review of the denial of benefits, pursuant to 42 U.S.C. § 405(g). The Commissioner moved for judgment on the pleadings, pursuant to Fed. R. Civ. P. 12(c), seeking affirmation of the denial of benefits. (See Comm'r Mot. for J. on the Pleadings, Dkt. Entry 11.) Plaintiff cross-moved for judgment on the pleadings, seeking reversal of the Commissioner's decision and remand. Plaintiff contends that the ALJ: (i) failed to weigh the medical opinions of record and develop the record properly; (ii) failed to evaluate Plaintiff's credibility properly; and (iii) relied upon flawed vocational expert testimony. (See Pl. Mot. for J. on the Pleadings, Dkt. Entry 13.)

For the reasons set forth more fully below, the Commissioner's motion is denied, Plaintiff's motion is granted, and the matter is remanded for further administrative proceedings consistent with this opinion.


A. Non-medical and Testimonial Evidence

On October 27, 2009, Plaintiff, appearing pro se, testified at a hearing concerning her disability claim. (R. 32-72.)*fn1 Born on November 23, 1969, Plaintiff worked as an Assistant Manager at an Exxon Mobil gas station, but stopped working in January 2007 due to a ruptured hernia and depression. (Id. 36, 41-42.) Plaintiff testified that she could no longer work due to multiple sclerosis ("MS"), and also suffered from depression, memory loss, and pain and numbness in her feet, back, hands, fingers, neck and left leg. (Id. 49, 67, 69.) She also reported difficulties with walking, sitting, lying down, and sleeping, noting that she paces when she cannot sleep. (Id. 49, 53-54.)
Plaintiff further reported that she had been experiencing seizures, but they ceased while she was on Avonex, which was prescribed to slow down the symptoms of MS. (Id. 53-54.) A visiting nurse and social worker came to Plaintiff's home during August and September 2009 to teach her how to self-administer the Avonex injections, and to help her deal emotionally with the MS diagnosis. (Id. at 52-53.) Plaintiff testified that she continues to experience seizure symptoms such as tremors, dizziness, and poor balance, and that she was prescribed use of a cane in October 2009 to help with her balance and ease back pain. (Id. 53, 62.)

Plaintiff further testified that she currently sees a psychiatrist at the New Horizon Counseling Center, but prior to the diagnosis of her MS in 2008, she had been attending weekly counseling sessions since 2002 at the St. John's Episcopal Community Mental Health Center. (Id. 55-56.) She also testified that she had been seeing neurologist Dr. David Steiner for MS since her diagnosis in December 2008, but she has not seen him, nor has she seen any other neurologist, since July 16, 2009, because she is awaiting a Medicaid card. (Id. 82.) Plaintiff also testified that her current general practitioner is Dr. Detweiler at South Shore Family Medical Associates. (Id. 50-51.)

Plaintiff and her two daughters lived with Plaintiff's mother in 2007 and 2008, during which time Plaintiff did some simple food preparation, changed her baby's diapers, prepared her bottles, and lifted the toddler up when she weighed around seventeen pounds. (Id. 61, 71.) Plaintiff currently lives in her own apartment, and her twenty-two year-old daughter does the meal preparation and cleaning, and accompanies Plaintiff to the grocery store when Plaintiff goes food shopping. (Id. 64-65.) Plaintiff noted that she feeds and dresses herself, and cares for her own personal needs and grooming, but she is afraid to shower because of her lack of balance. (Id. 62, 66.) She noted that she has slipped in the bathroom when getting out of the bathtub, and that she lacks coordination. (Id. 62-63.) Plaintiff testified that on a typical day, she interacts with her three year-old daughter and sometimes takes her to the park up the block from their apartment with her older daughter's help. (Id. 54.) She also testified that she watches television and travels by car service to visit her mother. (Id. 65.) Plaintiff stated that she stopped driving in 2008 when she lost her vision in her left eye, and, although her vision has returned, she no longer drives because she does not own a vehicle. (Id. 40-41.)

Plaintiff reported an inability to walk for more than a half a block without stopping due to lack of balance and coordination, as well as back and leg pain. (Id. 67-69.) She also stated that she could not stand for more than one or two minutes without leaning on something, or sit for longer than thirty to forty minutes without standing up due to back pain and stiffness and tingling in her legs. (Id.) Plaintiff also reported tingling and numbness in her fingers resulting in difficulties with reaching overhead and grasping small items in her fingers. (Id. 69-70.) She reported an inability to lift more than five or six pounds, and stated that simply holding a gallon of milk is difficult. (Id. 71.)

Plaintiff currently takes medication for MS, seizures, joint pain, depression, and constipation, and takes vitamin B12. (Id. 51-54, 58-59). She also performs daily exercises to improve her balance and mobility. (Id. 53.)

B. Medical Evidence

1. Medical Evidence Prior to Alleged Onset Date of January 31, 2007

On April 28, 2003, Plaintiff's laboratory results at St. John's Episcopal Hospital revealed that she had low blood levels of Dilantin (indicative of a seizure disorder). (Id. 421.) Notes from an October 2005 Ultrasound Report indicated that Plaintiff was diagnosed with a seizure disorder in 1998 and was prescribed Dilantin. (Id. 434.) After the alleged onset date, on June 29, 2007, Plaintiff indicated to an intake worker at St. John's Episcopal Hospital Community Mental Health Center that she has a long history of major depression since 2000, but has no history of psychiatric hospitalization. (Id. 363, 365.)

2. Medical Evidence on or after Alleged Onset Date of January 31, 2007

Plaintiff stopped working as an Assistant Manager at an Exxon-Mobile gas station on January 31, 2007 due to a ruptured hernia and depression. (Id. 41.) On March 14, 2007, an MRI of Plaintiff's pelvis revealed a midline hernia. (Id. 431.) Several months later, on June 29, 2007, Plaintiff began seeking psychiatric treatment at St. John's Episcopal Hospital Community Mental Health Center. (Id. 285-303.) Plaintiff reported a long history of major depression since 2000, and had been treated at the clinic in 2002-2003. (Id. 285, 331.) In 2006, after losing her job, Plaintiff moved into her mother's home with her two children, ages 20 and 1.5 years old. (Id. 217.) Plaintiff's initial mental status exam at Community Mental Health Center revealed that Plaintiff's mood was tense, depressed, fearful, angry, and anxious. (Id. 296.) Plaintiff reported physical limitations including a hernia, sleeping problems, and low energy levels. (Id. 290, 298.) Upon psychiatric evaluation of Plaintiff, Dr. Vladimir Glauberson observed that Plaintiff's mood was somewhat depressed, and her affect labile. (Id. 215.) Both Dr. Glauberson and the social worker assessed a GAF of 59,*fn2 and diagnosed Plaintiff with depressive disorder-NOS (not otherwise specified) and borderline personality disorder. (Id. 215, 298.) Dr. Glauberson noted that Plaintiff requires psychotherapy and medication in order to remain stable. (Id. 298.) Shortly thereafter, Plaintiff's primary care physician, Dr. Charlie Chen, at the Joseph P. Addabbo Family Health Center, prescribed Dilantin for Plaintiff's seizures and Lexapro for her depression. (Id. 261.)

On July 13, 2007, Plaintiff visited Arbor WeCare for a biopsychosocial evaluation with Dr. Reddy. (Id. 223-229.) Plaintiff stated that she was diagnosed with depression and was receiving mental health treatment. (Id. 224.) She stated that her depression had been gradually worsening for three years, is precipitated and aggravated by stress, and is alleviated by medication. (Id. 226.) She also reported a ten-year history of mild seizure disorder, which is aggravated by stress and alleviated by medication, and she had a three-month history of a hernia. (Id.) Dr. Reddy noted that Plaintiff has physical and mental health problems that significantly affect her functioning, but she has no psychiatric limitations on her ability to work, and only minor physical limitations consisting of seizure precautions (no driving, climbing heights, lifting, pulling, pushing). (Id. 227-29.) Dr. Hillel Glover subsequently conducted a consultative psychiatric evaluation for depression, noting that Plaintiff was occasionally tearful and depressed. (Id. 230-238.) He diagnosed Plaintiff as having an adjustment disorder, depression disorder, and a GAF of 70-75,*fn3 and recommended a low dose of medication and brief counseling to address Plaintiff's stressors, but noted that there are no psychiatric limitations to Plaintiff's employment. (Id. 238.)

From July 30, 2007 through February 2008, Plaintiff attended weekly therapy sessions with social worker Corinne Eisner, and monthly psychopharmacology appointments with Dr. Glauberson at Community Mental Health Center. (Id. 304-10, 379-83, 464-74.) An early progress note from August 2, 2007 indicated that Plaintiff's thoughts were disorganized and her speech was pressured during a session in which she articulated concerns about her health, the cost of a potential hernia operation, and getting a job. (Id. 306.) After a hernia repair operation in August 2007, a St. John's surgical progress note confirmed that Plaintiff had no pain, and Dr. Glauberson noted that Plaintiff had improved sleep, and was taking care of her eighteen month-old baby. (Id. 307, 500.) During October sessions with Dr. Glauberson and Ms. Eisner, Plaintiff admitted to taking her medications only sporadically, and, throughout November, her mood was anxious.

(Id. 308-09.)

The following month, Plaintiff told Ms. Eisner that she is not mentally fit to work, and in December, Dr. Glauberson noted that Plaintiff was experiencing mood fluctuations, and had stopped taking her depression medication. (Id. 309-10.)

On January 1, 2008, Plaintiff was referred to Dr. David Guttman by the Division of Disability Determination for a consultative internal medicine examination, and to Dr. Richard Mays for a consultative psychiatric evaluation. (Id. 311-17.) Upon examination, Dr. Guttman found that Plaintiff had no physical limitations, and recommended that Plaintiff should not operate motor vehicles or moving machinery because of her seizure disorder. (Id. 312-13.)

Plaintiff's psychiatric evaluation with Dr. Mays revealed symptoms of anxiety, diminished sense of pleasure and self-esteem, social withdrawal, excessive worry and short term-memory deficits. (Id. 315.) Dr. Mays opined that Plaintiff could follow and understand simple instructions, perform simple tasks independently, and maintain a regular schedule, but had some difficulty with attention and concentration, was somewhat impaired in her ability to learn new tasks, had a moderate-to-high level of difficulty relating with others, was experiencing a high level of stress, and would have moderate difficulty performing complex tasks independently and making appropriate decisions. (Id. 317.) Dr. Mays diagnosed a moderate depressive disorder with psychotic features and a panic disorder without agoraphobia, and ultimately assessed that Plaintiff's psychiatric problems were not significant enough to interfere with her ability to function on a daily basis. (Id.)

On January 7, 2008, Plaintiff experienced a seizure. (Id. 501.) Dr. Glauberson noted that Plaintiff's condition was stable when put back on Dilantin, but three weeks later, he recommended that Plaintiff be excused from her work for a month pending further evaluation. (Id. 385, 501.) On March 7, 2008, Ms. Eisner and Dr. Glauberson together completed a medical questionnaire concerning Plaintiff's conditions for the Division of Disability Determinations.

(Id. 322-28.) Ms. Eisner reported that, as a result of outside stressors, Plaintiff continued to experience symptoms of depression, and that she recently experienced seizures. (Id. 322.) A mental status examination revealed that Plaintiff's mood was depressed and anxious. (Id. 325.) A functional assessment revealed that Plaintiff's anxiety interfered with her ability to accomplish tasks. (Id. 326-27.) Ms. Eisner indicated that she was unable to provide an opinion regarding whether Plaintiff was able to perform work related activities or function and respond appropriately in a work related setting. (Id. 326-28.) Dr. Glauberson noted that since 2006, Plaintiff's prognosis has depended on multiple outside factors, but did not specify the duration and prognosis of her conditions. (Id. 323.)

On April 17, 2008, Dr. J. Kessel, a State psychiatric consultant, determined that, although Plaintiff's depressive symptoms and anxiety impairments did not meet the criteria in the Listing of Impairments for a major depressive disorder, Plaintiff has a depressive disorder-NOS and an anxiety disorder-NOS. (Id. 341, 344, 346.) He noted that Plaintiff had mild restrictions in performing the activities of daily living and maintaining concentration, and moderate difficulties with maintaining social functioning. (Id. 351.)

MRIs of Plaintiff's brain ordered by Dr. Glauberson in May, July, and December 2008, revealed a demyelinating disease consistent with the finding of MS, and a May 7, 2008 electroencephalogram ...

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