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Gomez v. Commissioner of Social Security

United States District Court, D. New Jersey

February 10, 2014


Adrienne Freya Jarvis, Adrienne Freya Jarvis, P.C., Cherry Hill, NJ, Attorney for Plaintiff.

Elizabeth Rothstein, United States Attorney's Office c/o Social Security Administration, New York, NY, Attorney for Defendant.


RENÉE MARIE BUMB, District Judge.

Plaintiff Omayra Gomez Del Valle (the "Plaintiff") seeks judicial review pursuant to 42 U.S.C. § 405(g) of the final decision of the Acting Commissioner of Social Security (the "Commissioner") denying her application for Social Security Supplemental Income ("SSI"). For the reasons set forth below, the Court will vacate the decision of the ALJ and remand.

I. Background

a) Procedural History

Plaintiff applied for SSI on March 30, 2009, alleging a disability onset date of June 3, 2008. (Administrative Record "R." 94). Plaintiff's claims were denied on September 18, 2009, and again upon reconsideration on February 5, 2010. (R. 19). Plaintiff then filed a request for a hearing before an Administrative Law Judge ("ALJ"), which was held before the Honorable Frederick Timm, on January 11, 2011. (R. 32). Plaintiff appeared, testified at the hearing with the assistance of an interpreter, and was represented by counsel. (R. 19).

The ALJ issued his determination on March 17, 2011, finding that Plaintiff had not been disabled since the date of filing and denying benefits. (R. 13-27). Thereafter, Plaintiff filed a Request for Review of Hearing Decision with the Appeals Counsel on March 17, 2011. (R. 1). Plaintiff submitted additional medical records (R. 465-703), which the Appeals Counsel made part of the record. (R. 6-7). The Appeals Counsel made no further findings and adopted the ALJ's decision on November 2, 2012. (R. 1). That decision is the final decision of the Commissioner of Social Security.

b) Hearing Testimony

Plaintiff, who came to the United States from Puerto Rico in 2007 or 2008 (R. 60), speaks very little English and required the use of an interpreter at the ALJ hearing. The interpreter switched between answering in the first and third person. (See, e.g., R. 62-64), and the transcript is often difficult to follow.

Three witnesses testified during the ALJ hearing. The first witness, Plaintiff's sister Marisol Torres, testified that Plaintiff has "always" heard voices, explaining that Plaintiff has been hearing voices and "seeing somebody[1]" since she was very young. (R. 52). Plaintiff sometimes ask Ms. Torres if she hears voices, and when Ms. Torres indicates that she does not, Plaintiff starts to cry. (R. 52-53). Ms. Torres testified that Plaintiff started therapy at Nueva Vida when she came to the United States from Puerto Rico in 2007 or 2008. (R. at 60). Plaintiff's psychiatrist at Nueva Vida is Dr. Monte. (R. 61, 390-92, 437-39).

With respect to Plaintiff's employment history, Ms. Torres testified that Plaintiff worked as a cashier at Kmart in Puerto Rico when she was 15 or 16 years old. (R. 54, 60). Later, in 2008, Plaintiff reported earnings of $11, 000.00, earned through knitting children's clothing that Ms. Torres would then sell. (R. 55, 56-59). Ms. Torres indicated she encouraged Plaintiff to knit to keep her mind occupied and that Plaintiff knitted for approximately one hour a day in the afternoons during this time. (R. 74-76). Ms. Torres supervised Plaintiff and did not think Plaintiff could complete the work by herself because Plaintiff would "freak out if it[] [was] not right" and because Ms. Torres had to reteach her or correct her knitting every day. (R. 74-75). Ms. Torres testified that Plaintiff eventually gave up the business because "it was too much for her." (R. 57-58).

Ms. Torres testified that her involvement with Plaintiff on a daily basis is "almost on everything, " including helping with food shopping, cooking, doing laundry, and caring for Plaintiff's children. (R. 42-43, 49-50). Ms. Torres testified that Plaintiff sometimes gets frustrated helping her children with their homework because "[i]t's very difficult for her... to think on her own, to actually explain.... [and] she seems to not have the patience to be sitting with the kids." (R. 50). Ms. Torres testified that Plaintiff has difficulty food shopping because most of the time she shops she panics from being around so many people. (R. 44, 46-47). During these panic attacks, Plaintiff sometimes cries, pulls her hair, bites her nails, and scratches herself. (R. 45).

Ms. Torres does not let Plaintiff watch soap operas or the news as these programs tend to upset Plaintiff. (R. 54-55). Instead, Plaintiff watches cartoons with the children. (R. 54). Ms. Torres testified that she is Plaintiff's only friend, and, even so, Plaintiff sometimes wants to punch or hit Ms. Torres. (R. at 54-55).

Ms. Torres testified that she and Plaintiff's aunt take Plaintiff to her clinic appointments and that Ms. Torres waits for Plaintiff during these appointments in case Plaintiff gets nervous being around people. (R. 48). Ms. Torres also always makes sure Plaintiff takes her medication. (R. 49-50).

After Ms. Torres' testimony was complete, the Plaintiff testified. At the beginning of Plaintiff's testimony, counsel asked whether Plaintiff was scratching herself and whether she needed a break. (R. 63-64). The interpreter told Plaintiff she did not have to be scared and the parties agreed to take a break. (R. 64). Upon return, the interpreter indicated she thought Plaintiff was nervous because she was scratching herself. (R. 63-64).

Plaintiff, through her interpreter, testified that she sometimes hears a man's voice and that the voice scares her. (R. 64). When she is home alone, Plaintiff locks the house, which has three locks, and draws the curtains. (R. 65). Plaintiff testified that she sometimes gets sick and vomits from nervousness and that she bites her hands from anger. (R. 66-67).

Plaintiff confirmed that Ms. Torres is her only friend, helped Plaintiff knit the children's clothing, and continues to help Plaintiff care for her children and cook. (R. at 62-63, 65-66, 72-73). Plaintiff testified that she has not made children's clothes for a long time and that she threw away her knitting tools after becoming angry. (R. 68). On one occasion, a customer was unhappy with a dress Plaintiff made, and Plaintiff "didn't know what to do and she just exploded herself... and quit doing it." (R. 69). Plaintiff testified that she discussed her knitting business with her counselor but not her psychiatrist. (R. 71).

Plaintiff stated that could not work as a cashier now because she is too nervous around people; she only worked as a cashier at Kmart because her parents needed money and, even then, only worked for three hours a day for a very short time because she was still in school. (R. 70, 72). Further, Plaintiff testified that her mental problems have worsened since she worked at Kmart. (R. 72). Plaintiff has not applied for a job since being in New Jersey. (R. 71).

During the hearing, the ALJ consulted with Chris Martin, a Vocational Expert ("VE"), to determine the types of work Plaintiff could perform. (R. 76). Based on the hypotheticals presented by the ALJ, the VE testified that the Plaintiff could perform in the field of knit goods[2] (R. 80, 87), or as a housekeeping cleaner (R. 83, 85), a sedentary assembler (R. 85), or a locker room attendant (R. 85). The parties concluded the cross-examination of the VE and apparently intended to reconvene at a later date. (R. 93).

c) The ALJ's Decision

Applying the requisite five-step analysis, [3] the ALJ concluded that Plaintiff met the insured status requirements of the Social Security Act and had not engaged in substantial gainful activity since March 30, 2009. (R. 21). The ALJ found that Plaintiff has the severe impairments of varicose veins and superficial thrombophlebitis of the left lower extremity, and a major depressive disorder. (R. 21). In making the "severe impairment" findings, the ALJ relied on records related to Plaintiff's conditions, including:

• The report of David Bogacki, Ph.D, who conducted a consultative mental status examination on Plaintiff on September 15, 2009 at the request of the Social Security Administration (Exhibit 1F);
• The report of Joseph Wieliczko, Psy.D. from September 18, 2009 (Exhibits 3F & 4F);
• Treatment notes from Nueva Vida Behavioral Health Center of New Jersey from August 8, 2008, when Plaintiff was evaluated by Lyda Monte, M.D., and from November ...

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