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MENDEZ v. CHATER

June 18, 1996

SHIRLEY A. MENDEZ, SSN: 180-42-2193, Plaintiff
v.
SHIRLEY S. CHATER, Commissioner, Social Security Administration, Defendant



The opinion of the court was delivered by: POWERS

REPORT - RECOMMENDATION

 RICHARD A. POWERS, III, CH. M. JUDGE

 JUNE 18, 1996

 The plaintiff seeks judicial review of a final decision of the Commissioner of the Social Security Administration ("Commissioner"), denying her claim for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act"), 42 U.S.C. §§ 1381-1383c. Before the Court are the parties' cross-motions for summary judgment. For the following reasons, I recommend that plaintiff's motion be granted and defendant's motion be denied.

 The plaintiff was born on December 2, 1951. (tr. 136). She left school at the age of thirteen (13) in the seventh grade after she became pregnant by a thirty-two (32) year old married man. (tr. 108). She subsequently took classes to qualify for a GED, but failed the test, receiving instead a certificate showing completion of the tenth grade. (tr. 100). She has a beautician's license, but has worked only one (1) day since 1991. (tr. 101). The shop manager told her that she was too nervous for the job. (tr. 101).

 The plaintiff has a lengthy history of health problems, manifested by fatigue, weakness, and breathing difficulties. In recent years, she was diagnosed as suffering from granulomatous hepatitis *fn1" after undergoing a liver biopsy. (tr. 209). Her doctor, Berel Arrow, D.O., noted on August 1, 1991, that her abnormal chest x-ray suggested that her condition might be caused by sarcoidosis. *fn2" (tr. 211).

 The diagnosis was confirmed by John Daly, M.D., after further studies. (tr. 218-19). Dr. Arrow prescribed Imuran *fn3" on December 3, 1991, when the plaintiff was unable to tolerate Prednisone. *fn4" (tr. 237). In a report to the Pennsylvania Bureau of Disability Determination on August 14, 1992, Dr. Arrow noted that although the sarcoidosis was in remission and that the plaintiff was currently not on medication for that condition, she continued to suffer from nausea, weakness, and joint pains as well as lower abdominal pain. (tr. 369-70). Dr. Arrow further stated that the plaintiff's only medication was Aldactone. *fn5"

 The plaintiff was treated for acute pleurisy at the Community Hospital of Lancaster on September 14, 1993. (tr. 448-56). She was admitted to the Lancaster General Hospital on December 6, 1993, after suffering for two (2) months with increasing breathlessness on exertion, intermittent chills and fever, and a productive cough. (tr. 478). The plaintiff was treated for pneumonia through December 14, 1993 at the hospital. (tr. 462-586). The record of the plaintiff's mental impairment reveals that she began to take anti-anxiety medications including Valium *fn6" , Serax *fn7" , and Ativan *fn8" prescribed by her doctor as early as 1967, when she was fifteen (15) years old, and continuing through 1981. (tr. 298-99). In 1991, on two (2) occasions, Dr. Gary Samburg prescribed BuSpar *fn9" for anxiety and Prozac *fn10" for depression. The plaintiff discontinued the medication because of the side effects. (tr. 258-59). Physicians who have treated her over the years have reported that her physical complaints are "related to underlying psychosocial problems" (tr. 619) and exacerbated by anxiety and somatization. *fn11" (tr. 480).

 On August 25, 1992, the plaintiff was examined by a psychiatrist, Donald Rynier, M.D., for the Pennsylvania Bureau of Disability Determination. (tr. 355-64). Doctor Rynier diagnosed the plaintiff as suffering from recurrent major depression. He described her prognosis as guarded and recommended active psychiatric treatment. (tr. 365). As to her ability to perform work-related activities, he reported that she had limited or no ability to deal with work stresses, function independently, maintain attention/concentration, behave in an emotionally stable manner, and execute complex job instructions. (tr. 362-63).

 During her hospitalization for pneumonia in December, 1993, the doctors who treated her reported a history of depression, anxiety, and domestic problems. (tr. 599). Two (2) weeks after her discharge from the hospital, the plaintiff was seen for a follow-up appointment by W.G. Weiland, M.D.. Dr. Weiland reported that the plaintiff's "persistent fatigue is mostly related to her underlying psychosocial problems" and prescribed Zoloft *fn12" , advising her to try the drug for at least two (2) weeks and pointing out its possible side effects including headaches, dizziness, diarrhea, and nausea. (tr. 619).

 The plaintiff returned for a reevaluation two (2) weeks later, at which time the attending physician noted that the plaintiff appeared to have used Zoloft only intermittently because of her concerns about becoming addicted. (tr. 617). A report of a later visit noted that the plaintiff was advised to continue taking Zoloft and to seek counseling.

 In fact, the plaintiff had sought counseling previously at the Lancaster Guidance Center in December, 1992. (tr. 402). A therapist, Ethelmae McSparren, evaluated the plaintiff in January, 1993. Ms. McSparren noted that the plaintiff has a significant family history of depression and numerous somatic complaints. (tr. 401). Based on her observations and the plaintiff's history, Ms. McSparren made a diagnosis of dysthymia. *fn13" She recommended outpatient treatment, but the plaintiff failed to attend the therapy sessions. (tr. 397).

 The plaintiff first applied for benefits on April 23, 1991, claiming inability to work because of fatigue, weakness, nausea, and pain. (tr. 136, 140, 153). Following the denial of her application both initially and upon reconsideration, the plaintiff requested and received a hearing before an Administrative Law Judge ("ALJ"). (tr. 51-94). After the ALJ rendered his decision on February 27, 1993, denying the plaintiff's claim (tr. 376-87), she asked the Appeals Council to review the ALJ's decision.

 On August 13, 1993, the Appeals Council granted the request for review under the substantial evidence provision of the Social Security Administration regulations pursuant to 20 C.F.R. § 416.1470, and remanded the case to another ALJ with instructions to conduct a more ...


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