Spielberg v. Barnhart
| Decision Date | 02 March 2005 |
| Docket Number | No. 03-CV-1108 DLI.,03-CV-1108 DLI. |
| Parties | Tammy Lee SPIELBERG, Plaintiff, v. Jo Anne B. BARNHART, Commissioner, Social Security Administration, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Tammy Lee Spielberg, Staten Island, NY, pro se.
Daniel D. Kuhn, Kuhn and O'Toole, LLP, Staten Island, NY, for Plaintiff.
Kathleen Anne Mahoney, United States Attorneys Office Eastern District of New York, Brooklyn, NY, for Defendant.
Plaintiff Tammy Lee Spielberg appeals from the Commissioner of Social Security's determination that she is not disabled and thus not entitled to Disability Insurance Benefits and Supplemental Security Income under the Social Security Act. Plaintiff's claim for benefits is based on post traumatic stress syndrome, anxiety, fears, and phobias. The decision by the administrative law judge ("ALJ") on April 26, 2002, denying benefits after a hearing held on March 4, 2002,1 became the Commissioner's final decision when the Appeals Council denied plaintiff's request for review on January 30, 2003. Pursuant to 42 U.S.C. § 405(g), plaintiff timely filed her request for judicial review in this court on March 4, 2003. For the reasons set forth below, the court reverses the decision of the Commissioner and remands this case for a calculation of disability benefits.
At the hearing on March 4, 2002, the ALJ interviewed plaintiff, who reported that the onset of her disability occurred on December 20, 1999. According to plaintiff, she suffers from (Admin. R. at 58.) Plaintiff testified that she also suffers from post-traumatic stress disorder (PTSD), which is a result of being abused as a child. Her symptoms of PTSD, which recur daily, include anxiety, insomnia, and feelings of helplessness and hopelessness. Plaintiff also reported trouble with short-term memory and anxiety when interacting with people. Plaintiff testified that she has had thoughts about suicide.
Plaintiff received psychotherapy treatment from a social worker in Virginia, starting in 1997 and continuing through her disability onset in December 1999. She began consulting a psychologist in New York in October 2001. Plaintiff reported taking several medications, including Prozac and Ambien, at various times but not since early 1999. She has been diagnosed with depression, dysthmic disorder, PTSD, obsessive compulsive disorder, and personality disorder.
During the three months prior to her disability onset, she had been working as a waitress for 12 to 18 hours per week. Plaintiff's other past employment includes positions as a salesperson (clothing and furniture; around 40 hours per week) and childcare worker (around 25 to 30 hours per week). Between December 1999 and the March 4, 2002 hearing, plaintiff estimates that she had worked a total of 69 hours as a babysitter, for no more than 9 hours per week at a time. She testified that she drives around 18 miles per week to shop at a health food store.
Impartial medical expert Dr. Michael Friedman testified at the hearing that the claimant did not meet or medically equal any listed impairment in 20 C.F.R. § 404, Appendix 1. In his opinion, the plaintiff would have moderate difficulty interacting with co-workers and supervisors. Dr. Friedman agreed with state agency doctors that plaintiff would have moderate limitations in concentrating, performing scheduled activities, attendance and punctuality, ability to interact with the general public, and setting goals or making self-motivated plans. Based on these findings, the medical expert analyzed plaintiff's condition under the categories of "Affective Disorders: [c]haracterized by a disturbance of mood, accompanied by a full or partial manic or depressive syndrome" (12.04) and "Anxiety Related Disorders" (12.06).2 For both categories, the necessary severity level is met where the claimant satisfies requirements under parts A and B or under parts A and C of the description. Both sides agreed that part C was not applicable for either disorder. For both categories, Dr. Friedman found part A satisfied.3
As to part B of both categories, plaintiff must have two of the following symptoms: (1) marked restrictions of daily living; (2) marked difficulties in maintaining social functioning; (3) marked difficulties in maintaining concentration, persistence, or pace; or (4) repeated episodes of decompensation, each of extended duration. Dr. Friedman found plaintiff's limitations moderate for (2) and (3). Therefore, he agreed with the treating psychologist and social worker that plaintiff had these symptoms but considered her limitations "moderate"4 rather than "marked." He based this conclusion on his observations at the hearing, noting plaintiff's apparent ability to concentrate on the ALJ's questions, to sit for a long period of time, and to take care of grooming and personal hygiene. Dr. Friedman also found telling plaintiff's lack of difficulty in using public transportation and the fact that she was never fired from any of her jobs.
Next, a vocational expert was given a hypothetical describing plaintiff's impairments as "moderate" in terms of "interacting with supervisors [and] co-workers[,] ... [t]he ability to perform activities within a schedule, maintain regular attendance and be functional within tolerances, the ability to interact appropriately with the general public[,] and the ability to set realistic goals or make plans independently of others." (Admin. R. at 100.) The vocational expert testified that plaintiff would be able to perform her past relevant work as a childcare worker but that working as a salesperson or waitress would not be sufficiently routine for plaintiff's condition. The vocational expert also suggested plaintiff could work as a file clerk or a library assistant.
For a second hypothetical, the ALJ asked the vocational expert to assume plaintiff's testimony to be true, including as to concentration and memory limitations. The vocational expert testified that plaintiff would not be capable of performing any of her past relevant work or engaging in any other employment on a consistent and sustained basis.
The record also contains evaluations and letters from Dr. Dinoff (a non-examining consultative doctor), Dr. Renee Ravid (a consultative psychiatrist), Mr. James McKinley-Oaks (a treating social worker), Dr. Noah Malowitzky (a treating psychologist), and Dr. Alex Rizk and Dr. Josie Kinkade (treating doctors).
Dr. Dinoff, a state medical expert who filled out a form labeled "Mental Residual Functional Capacity Assessment," found plaintiff "not significantly limited" in most areas, with the exception of "moderate" limitations in performing activities within a schedule, interacting with the general public, and setting goals/plans independently of others.5 Dr. Dinoff found that plaintiff suffered from personality disorder, depression, and anxiety but was "capable of low contact work activities." (Admin. R. at 183.)
Dr. Ravid diagnosed plaintiff with PTSD, rule out dysthymic disorder, and rule out personality disorder. He noted that plaintiff denied having suicidal thoughts and labeled her recent memory as "fair."
Mr. McKinley-Oaks treated plaintiff, both in person and over the telephone, from February 1997 through at least mid-2001. He described plaintiff's limitations as "marked"6 in many areas, including planning daily activities, initiating activities independently of others, communicating clearly and effectively, getting along with friends and neighbors, exhibiting social maturity, responding to authority, maintaining employment, and avoiding altercations and evictions.
Dr. Malowitzky, who treated plaintiff weekly starting in October 2001, described plaintiff's limitations as "marked" in many of the same areas as Mr. McKinley-Oaks,7 and he added several more "marked" limitations, including grooming and personal hygiene, using public transportation and post offices, keeping appointments, and getting along with strangers.
The notes of Dr. Rizk and Dr. Kinkade, recorded sporadically from May 1997 to August 2000, indicate plaintiff was suffering from depression, anxiety, and insomnia and report the prescription of several medications. However, these reports do not comment on plaintiff's daily functioning.
Defendant argues that the case should be remanded for further administrative proceedings, because the court is not in a position to review the ALJ's decision, which did not sufficiently explain the weight it gave to the medical and opinion evidence presented. Plaintiff admits that the ALJ's analysis falls short in this respect but contends there is persuasive proof of disability in the record to support a reversal of the Commissioner's decision.
The district court reviews the Commissioner's decision to determine whether it is supported by substantial evidence and based on correct legal standards. Schaal v. Apfel, 134 F.3d 496 (2d Cir.1998). In the court's review of the record, "[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). Substantial evidence means Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)).
The district court is empowered "to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security,...
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