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MERSMAN v. HALTER

April 2, 2001

MAEVA O. MERSMAN, PLAINTIFF,
v.
WILLIAM A. HALTER, ACTING COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Conti, District Judge.

ORDER GRANTING PLAINTIFF'S MOTION FOR REMAND; DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; AND DENYING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Plaintiff Maeva Mersman brings this action pursuant to 42 U.S.C. § 405 (g) to obtain judicial review of the final determination that Plaintiff does not qualify for disability benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et seq., by Defendant William Halter, Acting Commissioner of the Social Security Administration.*fn1 In the present motion, Plaintiff seeks an order reversing the Commissioner's final findings, or in the alternative, remanding the case to the Commissioner for further proceedings. The Commissioner, in turn, has filed a cross-motion for summary judgment.

II. BACKGROUND

On May 27, 1997, Plaintiff filed an application for Social Security disability insurance. (R. at 46-47.) Plaintiffs disability insured status expired on March 31, 1998. (R. at 15.) The Social Security Administration denied Plaintiffs application upon initial review and on reconsideration. (R. at 30-40.) Plaintiff then requested a rehearing which took place before the Honorable Donald F. Rector, Administrative Law Judge ("ALJ") on November 5, 1998. (R. at 43, 320-79.) Present counsel represented Plaintiff.

Plaintiffs medical records indicate that Plaintiff suffered an eclamptic seizure with loss of consciousness late in pregnancy on September 8, 1993. (R. at 130-168.) Mound the same time, Plaintiff was diagnosed with deep-vein thrombosis. (R. at 130-168.) Between 1993 and the present, Plaintiff had a number of medical problems unrelated to plaintiffs eclampsia and deep-vein thrombosis.*fn2 (R. at 169-294.)

On February 24, 1997, Plaintiff complained of increasing memory problems to Dr. Ferry, her OB/GYN. (R. at 169.) Dr. Ferry recommended a neurological examination which took place on April 11, 1997. (R. at 169, 308.) The neurological report did not test Plaintiffs mental status in detail, but noted that it "seems to be grossly normal with many digressions" and that "it was difficult [for Plaintiff] to hold the train of her thought." (R. at 308.) The report's impression was of a history of cognitive decline, status post seizure, perhaps a hemorrhage or ischemic event from the 1993 seizure, and depression. (R. at 308.)

On July 26, 1997, Dr. Packer conducted a physical examination. Dr. Packer reported that Plaintiff had monotone and regulated speech, had a negative Romberg sign, had "fairly good, but not completely intact or normal" finger movements, could do serial nines, was able to spell the word "world" backwards slowly, and became anxious when pressed. Dr. Packer opined that Plaintiffs ability to work may be of a psychiatric nature or neurological nature and that her history of legs clots and emboli precluded full time work or sitting in one position. (R. at 298-99.)

A consultative psychiatric examination was also conducted on July 26, 1997. Dr. Bandlow reported: "Claimant recalled a detailed mental history and engaged in a logical conversation. Claimant's attention space was good. Remote and short-term memory were intact." (R. at 296.) Dr. Bandlow opined that Plaintiff presents a generalized anxiety disorder following eclampsia of pregnancy, is not motivated to work, exaggerates her symptoms, and that there is no evidence of an organic mental disorder, major depressive disorder, or psychotic disorder. (R. at 295-299.)

Subsequently during September and October of 1997, Plaintiff underwent extensive neuropsychological testing administered by Dr. Kosters and a Psychology intern, Andrea Bauer. Dr. Kosters' evaluation report stated:

Testing revealed that Ms. Mersman's verbal IQ scores were within the average range while her performance IQ scores were in the low average range. Taken together, these place her overall cognitive functioning in the average range. However, it should be noted that to describe her performance as average is misleading insofar as it conceals the marked variability of her cognitive skills.

(R. at 303.). According to Dr. Kosters, while Plaintiff was in the 98th percentile in vocabulary skills, she was in the 2nd percentile in visual-motor and coordination skills. (R. at 303.) Dr. Kosters opined that:

Memory is [Plaintiffs] most significant area of impairment. She is having difficulties with all forms of memory. Her lowest scores, placing her in the 1St percentile when compared with others in her age group, occurred on the attention/concentration and delayed recall indices. Difficulty was experienced in organizing and accessing learned information in tactile, visual and verbal modalities.(R. at 303.)

In addition, Dr. Kosters found that a "severe impairment appeared on tasks that required the integration of multiple skills, such as attention, memory, sequencing and speed." (R. at 303.)

At the administrative hearing, Plaintiff testified that she no longer takes public transportation (R. at 332.);*fn3 she cooks, but often with the help of her husband or a friend (R. at 338); she cleans the house with the use of written reminders to help her stay on track; she shops with her husband (R. at 333, 338); she can read a newspaper for ten minutes at a time (R. at 334-35); and that she helps out at her son's school between 9:45 and 1:15 every day (R. at 336.) Plaintiff testified that this school volunteering involves following instructions from the school teacher to "put together books or color or staple" and that 30-45 minutes, are ...


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