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Jeanette Gonzalez v. Michael J. Astrue

September 10, 2012

JEANETTE GONZALEZ, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM AND ORDER

Plaintiff Jeanette Gonzalez ("Plaintiff") filed an application for disability insurance benefits under the Social Security Act (the "Act") on April 23, 2008, alleging a disability that began on December 17, 2007. (R. 117-19.) *fn1 The Social Security Administration denied Plaintiff's application initially and on reconsideration. (R. 64-67.) Plaintiff appeared pro se and testified at a hearing held before Administrative Law Judge Gal Lahat ("ALJ") on September 21, 2009. (R. 4-46.) By a decision dated September 30, 2009, the ALJ concluded that Plaintiff was not disabled within the meaning of the Act. (R. 48-63.) On April 29, 2010, the ALJ's decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review. (R. 1-3.)

Now represented by counsel, Plaintiff filed the instant appeal seeking judicial review of the denial of benefits, pursuant to 42 U.S.C. § 405(g). The Commissioner now moves 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 14.) Plaintiff cross-moves for judgment on the pleadings, seeking reversal of the Commissioner's decision and remand for further proceedings. (See Pl. Mot. for J. on the Pleadings, Dkt. Entry 16.) Plaintiff contends that the ALJ did not: (i) properly advise Plaintiff of her right to counsel at the hearing;*fn2 (ii) properly give controlling weight to Plaintiff's treating physician; (iii) properly evaluate Plaintiff's credibility; and (iv) present the vocational expert with an appropriate hypothetical. (See Mem. of Law in Opp'n to Def.'s Mot. for J. on the Pleadings and in Supp. of Pl.'s Cross-Mot., Dkt. Entry 17 ("Pl. Mem."), at 7-8.)

For the reasons set forth below, the Commissioner's motion is denied, and Plaintiff's motion is granted. The court remands the action for further administrative proceedings consistent with this Memorandum and Order.

BACKGROUND

I. Non-medical and Testimonial Evidence

On September 21, 2009, Plaintiff, appearing pro se, testified at a hearing concerning her disability claim. (R. 4--46.) At the time of the hearing, Plaintiff was forty-three years old and living with her husband and two sons. (R. 14.) She had obtained a GED and attended college for approximately one and a half years. (R. 15.) She also had obtained a certificate for secretarial science from the Taylor Business Institute, and received training as a corrections officer at the New York City Department of Corrections ("NYCDOC"). (R. 15-16, 140.)

Plaintiff held a variety of jobs during the past fifteen years.*fn3 From 1988 through 1992, and for part of 1995, she worked as a technician for photography labs. (R. 17-18, 133, 153-55, 169.) In 1996, she worked as a receptionist for a recycling company. (R. 17-18, 133, 153-56, 169.) From March 1997 to March 2004, she worked as a corrections officer at the NYCDOC.

(R. 17, 133, 156, 169.) As a corrections officer, she supervised and escorted inmates, conducted security searches, and responded to alarms. (R. 133, 156.)

Plaintiff suffered two work related accidents while working with the NYDOC. First, on October 19, 2003, Plaintiff slipped and fell while climbing stairs and injured her right hip. (R. 54, 300.) As a result, Plaintiff underwent an arthroscopic surgery performed by Dr. Srino Bharam on April 1, 2004. (R. 19-20, 310-312.) Following the surgery, Plaintiff continued to work at the NYCDOC, but only on "modified duty." (R. 18-20.) "Modified duty" included various tasks, such as "working the gates," which required constantly standing up, pushing and pulling heavy metal doors, and receptionist work.*fn4 (R. 18, 20.) Working as a receptionist required sitting for prolonged periods and answering phone calls. (R. 20.)

On March 1, 2007, Plaintiff underwent a second surgery, a right total hip joint replacement, performed by Dr. Eduardo Salvati at the Hospital for Special Surgery. (R. 178-84.) Plaintiff testified at the hearing that, although her surgery relieved a lot of her pain, she still felt pain when sitting or standing for prolonged periods. (R. 21.)

The second accident occurred on October 22, 2007. (R. 204.) While "pushing the restaurant door that was overlapped," Plaintiff strained her right hip and developed left hip pain that is aggravated by prolonged standing. (R. 204-05.) She continued to work on "modified duty" for two months until December 17, 2007, the date when her alleged disability began. (R. 16-18.)

Plaintiff claims that she can no longer work at her previous job as a receptionist, which was the last position she had as part of her "light duty" with NYDOC, because she cannot sit for more than two hours at a time. (R. 26-28, 34.) At the time of the hearing, Plaintiff was receiving $1,809.00 on a monthly basis pursuant to a disability retirement pension from the City of New York. (R. 17.)

II. Medical Evidence

A. Medical Evidence Prior to Alleged Onset Date of December 17, 2007

Plaintiff's hip injuries were treated by five physicians: Dr. Barry Katzman, Dr. Srino Bharam, Dr. Steven Touliopoulos, Dr. Kiomars Moosazadeh and Dr. John Vlattas. (R. 211, 215-16, 234-35, 239, 243.) All five physicians practice medicine at the same medical group, the ...


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