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PAPPAS-SANAVAITIS v. CHATER

September 12, 1997

CYNTHIA PAPPAS-SANAVAITIS, Plaintiff,
v.
SHIRLEY S. CHATER, Commissioner of Social Security, Defendant.



The opinion of the court was delivered by: KEYS

 The Plaintiff, Cynthia Pappas-Sanavaitis, seeks judicial review pursuant to the Social Security Act, 42 U.S.C. ยง 405(g), of a final decision of the Commissioner of Social Security (hereinafter "Commissioner") *fn1" denying her application for Disability Insurance Benefits. Plaintiff moves this Court for summary judgment reversing the Commissioner's decision denying her claim for such benefits or, in the alternative, an order remanding the case to the Commissioner for further proceedings. The Commissioner has filed a Cross-Motion for Summary Judgment in his favor. For the reasons set forth below, the Commissioner's Motion is denied and Plaintiff's Motion is granted in part; specifically, this cause is remanded to the Commissioner for further proceedings consistent with this Opinion.

 Procedural History

 On June 7, 1994, Plaintiff filed an application for Disability Insurance Benefits, alleging that she had been unable to work because of disability since January 14, 1994. (R. at 48-51.) She described her disability as frequent headaches, fevers, lack of energy, and pain in her back, hands, knees and ankles, all due to multiple sclerosis. (R. at 65.) The application was denied on September 29, 1994, (R. at 53-55), and, pursuant to Plaintiff's Request for Reconsideration of the denial, (R. at 58), the application was again denied on December 1, 1994. (R. at 60-62.)

 On January 5, 1995, Plaintiff filed a Request for Hearing, (R. at 63), and, on April 20, 1995, a hearing was held before Administrative law Judge ("ALJ") Philip E. Wright. (R. at 162-187.) On August 28, 1995, the ALJ issued a decision, finding that Plaintiff was not disabled because she could still perform her past work as a general office worker. (R. at 23-34.) On September 11, 1995, Plaintiff filed a Request for Review of the ALJ's decision with the Appeals Council. (R. at 15.) On May 31, 1996, the Appeals Council denied the Request for Review of the ALJ's decision, (R. at 3-4), which decision stands as the final decision of the Commissioner, (R. at 3), and is the subject of the Cross-Motions now before the Court.

 Factual Background

 A. Plaintiff's Testimony

 At the hearing before the ALJ, Plaintiff testified *fn2" that she was then 46 years old, having been born on August 1, 1948, and that she had a high school education. She has worked in the past performing general office clerical functions and also was a loan processor and loan officer for several banks and mortgage companies. (R. at 129, 166-168.) Those jobs were performed mostly while sitting. Because of her increasing inability to sit for long periods of time and the stress of the office work, Plaintiff quit that job and attempted to work for about two weeks in early 1995 as a waitress at a restaurant, which she did for only two and one-half hours per day, three days per week. She would come home after those two and one-half hours exhausted and with back pain. (R. at 168-169.) She quit that job on March 30, 1995. Prior to that two-week job, Plaintiff had last worked in January, 1994.

 In describing her symptoms and their effects to the ALJ, Plaintiff testified that, after her diagnosis of multiple sclerosis, she was in denial for a couple of years and, instead of admitting to the disease, she was determined to persevere, overcome its effects, and continue to function. Plaintiff--through her husband--testified that she was unable to perform her job because of the prolonged sitting involved, which exacerbated the pain in her back which, in turn, caused muscle spasms, fatigue, mental stress and depression. (R. at 171.)

 Plaintiff, who began weeping as she testified, testified that she has mood swings, which reduces her ability to concentrate and follow through on work-related activities. In the loan-processing job, after sitting for prolonged periods, she would be in such excruciating pain that she could not keep her mind on her work and would forget how to do routine things that she normally did every day. (R. at 174-175.) Specifically addressing her current depression, Plaintiff testified that her attention span wanders and that she becomes "preoccupied." (R. at 176.) Her physician has suggested that she take medication for her mood swings and depression, but she has declined to do so because of the many other medications she takes. (R. at 177-178.)

 B. Medical Records

 A Magnetic Resonance Imaging ("MRI") of Plaintiff's brain on July 2, 1990 first revealed findings consistent with multiple sclerosis ("MS"). (R. at 96.) On June 5, 1990, she had complained of numbness, which waxed and waned, in both hands. Plaintiff was encouraged to undergo a spinal fluid analysis, which she refused. (R. at 100-102.) On October 17, 1990, she complained of flu-like symptoms, a fever and back pain, for which anti-inflammatories were recommended. (R. at 101.) On November 14, 1990, Plaintiff still complained of numbness in her hands. She also continued to complain of back pain and numbness in her legs and feet. (R. at 108-110.) On May 18, 1993, Neurologist Dr. Steven B. Wolf confirmed that Plaintiff has MS. (R. at 106-107.) Plaintiff quit work in January 1994, and filed the application herein on June 7, 1994.

 On August 30, 1994, at the request of the Commissioner, Plaintiff underwent an internal medicine examination by Stephen S. Epner, M.D., who noted her diagnosis of MS. He noted her report of current tingling in her feet, knees, hands and fingers, and demonstrated decreased sensation in those extremities upon testing. Plaintiff also alleged that she became fatigued easily, had occasional vertigo, decreased vision and decreased memory and concentration to the extent that she sometimes became lost while driving. Objectively, Dr. Epner noted the decreased sensation in both feet and legs to above the knees, and in both hands and arms to the elbows. (R. at 111-115.)

 On September 19, 1994, apparently based on Dr. Epner's August 30, 1994 report, Dr. F. Paul LaFata, a non-examining physician, completed a Residual Physical Functional Capacity Assessment form, opining that Plaintiff could lift from ten to twenty pounds, stand and/or walk about six hours in an eight-hour workday, and sit for up to six hours. While noting that Plaintiff had tingling sensations in her hands, he found that it had not been established that she would have any problems using her hands. (R. at 116-120.)

 In a report dated March 24, 1995, Dr. Wolf noted that Plaintiff has pain when she sits for long periods of time, but that she has no limitations in lifting, standing, or walking. (R. at 124-126.)

 On June 6, 1995, Plaintiff underwent a post-hearing neurological evaluation by Dr. Hien Dang, at the request of the Commissioner. *fn3" Plaintiff's complaints to Dr. Dang were the same as those voiced to Dr. Epner on August 30, 1994. Objectively, however, Dr. Dang found her to be neurologically intact. He made no specific findings with respect to Plaintiff's mental status, except to note that she should be able to handle her own funds in her own best interests. (R. at 133-137.) With respect to Plaintiff's ability to do work-related activities, from a physical standpoint, Dr. Dang noted only her own statements as ...


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