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CRAIG v. APFEL

June 29, 1998

VIVIAN CRAIG, Plaintiff,
v.
KENNETH S. APFEL, Commissioner of Social Security, Defendant.



The opinion of the court was delivered by: NORGLE

OPINION AND ORDER

 CHARLES R. NORGLE, SR., District Judge:

 Before the court are cross-motions for summary judgment. For the following reasons, the court denies Defendant's Motion for Summary Judgment, and grants Plaintiff's Motion for Summary Judgment. The matter is remanded for further proceedings consistent with this Opinion and Order.

 I. BACKGROUND

 Plaintiff Vivian Craig ("Craig") first applied for supplemental security income ("SSI") on July 23, 1992, claiming that she was disabled due to asthma. On November 12, 1992, her request was denied. Craig reapplied for SSI on July 29, 1993, this time citing asthma and migraine headaches. Her second application was initially denied November 24, 1993, and later on reconsideration March 3, 1994. Craig then requested an administrative hearing.

 On June 26, 1995, less than three weeks before the scheduled hearing, Craig, at the behest of her attorney, underwent a psychological examination. Dr. Paula R. Markowitz, a psychologist, performed the evaluation. The following summarizes Dr. Markowitz's findings and conclusions.

 Craig presented herself as an obese 40 year-old African American. She appeared highly depressed and lethargic. Throughout the interview, she was tearful, and at times, sobbed uncontrollably. She put forth minimal effort to complete the assigned tests, and often, became frustrated and gave up. Her responses to simple questions were vague, disorganized, and required considerable thought before answering.

 The Wide Range Achievement Test showed an IQ level between 70-72, which borders on mental retardation. Neuropsychological test results indicated organic dysfunction due to Craig's performance on memory detail tasks. She could not accurately reproduce designs, nor draw a clock, i.e., the numbers were placed counterclockwise. When evaluating Craig's personality traits, Dr. Markowitz noted that her life had been characterized by significant instability and trauma: loss of an alcoholic and abusive father, gang raped at the age of 13, periodic use of alcohol and drugs, and bearing five children by five different fathers. On the Beck Depression Inventory, Craig endorsed statements regarding sadness, hopelessness, failure, boredom, fatigue, and indecision.

 Ultimately, Dr. Markowitz found that Craig suffered from major depressive disorder, functional illiteracy, dependent personality traits, and dementia. These impairments led Dr. Markowitz to conclude that Craig met the listing requirements of 20 C.F.R. Part 404, Subpart P, App. 1, § 12.02 (organic mental disorders), § 12.04 (depressive syndrome), and § 12.07 (somatoform disorders).

 On July 12, 1995, a hearing was held before Administrative Law Judge ("ALJ") Eileen Burlison. Craig, represented by counsel, was the first to testify. She stated that she had a tenth grade education, and briefly attended cosmetology school in 1990. After working only four months in a beauty salon, Craig quit her job due to a variety of claimed illnesses. Craig further testified that she visits her doctor's office regularly for asthma treatment. She also stated that she injects herself with medication when her migraine headaches become unbearable. As a result of these ailments, Craig spends her days sitting at home watching television. She has never had any significant employment except for her short stint with the beauty salon. Craig is supported by public aid.

 Dr. Irving H. Zitman, a board-certified internist and neutral medical expert, was the next to testify. Although Dr. Zitman admitted that he never personally examined Craig, his testimony was based on a review of her medical records. Dr. Zitman opined that while there was insufficient evidence in the record to support Craig's claim of migraine headaches, Craig did have an asthmatic condition since the age of 26. The attacks occur once or twice a week, and last two to three hours. However, Dr. Zitman stated that Craig's pulmonary function tests did not meet any listing level and that she responded well to bronchodilators. Nevertheless, Dr. Zitman opined that Craig had some limitations in her functional abilities due to asthma and severe obesity. Dr. Zitman did not comment on Dr. Markowitz's psychological findings.

 The vocational expert, Michael Komie, testified that even in light of Craig's limitations, she could still perform light jobs such as housekeeping. Additionally, many sedentary jobs involving assembly work were available to Craig. Komie did not express any opinion about how Craig's psychological profile may effect her employment opportunities.

 Although Dr. Armin Meller, Craig's treating physician, and Dr. Fauzia Rana, an internist, the Social Security Administration hired to examine Craig, did not testify at the hearing, both submitted medical reports which were entered into evidence. In large part, the two doctors reached similar findings; both concluded that Craig suffered from asthma and sever obesity. Notably, neither doctor identified any psychiatric abnormalities.

 On February 15, 1996, the ALJ issued her decision. The ALJ found that Craig was obese and suffered from asthma. However, the ALJ concluded that these impairments did not singularly or collectively meet the requisite listing level for SSI. Furthermore, the ALJ gave little weight to Dr. Markowitz's findings. She determined that the veracity of Dr. Markowitz's report was undermined by (1) the absence of any psychiatric diagnosis from other examining physicians, (2) the internal inconsistencies within the report, and (3) the eleventh hour timing of the exam. In the end, the ALJ accepted the ...


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