Aviles v. Barnhart

Full title: WILLIAM AVILES, Plaintiff, v. JO ANNE B. BARNHART, Commissioner of Social…

Court: United States District Court, E.D. New York

Date published: May 11, 2004

No. 02-CV-4252 (SJF)(RLM) (E.D.N.Y. May. 11, 2004)

Opinion

No. 02-CV-4252 (SJF)(RLM).

May 11, 2004

OPINION ORDER

SANDRA J. FEUERSTEIN, District Judge

I. Introduction

William Aviles ("Aviles" or "plaintiff") commenced this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the Commissioner of Social Security's ("the Commissioner") decision that plaintiff is not entitled to Supplemental Security Income ("SSI") as provided in Title XVI of the Social Security Act ("the Act").

The Commissioner has moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), and claims that its decision was supported by substantial evidence and application of the correct legal standards. Plaintiff has moved to remand for further proceedings on the grounds that he was not afforded a full and fair hearing and for consideration of new evidence. For the reasons set forth below, plaintiff's motion is GRANTED and defendant's motion is DENIED.

II. Background

A. Procedural History

Plaintiff filed an application for SSI benefits with the Social Security Administration ("Administration" or "SSA") on February 24, 2000 alleging an inability to work due to a learning disability and back pain. (Tr. 86-88). After the application was denied, (Tr. 74), plaintiff requested a hearing which was held before Administrative Law Judge Mark J. Hecht ("the ALJ") on January 28, 2002. (Tr. 25-73, 81-81). At the hearing plaintiff was represented by counsel and testified, (Tr. 25-73). The ALJ issued a decision on March 6, 2002 denying the claim and finding that plaintiff was not disabled within the meaning of the Act. (Tr. 12-18). Specifically, the ALJ ruled that plaintiff retained the ability to perform light work which exists in significant quantities in the national economy. (Tr. 16). Plaintiff timely requested a review of the ALJ's decision, which was denied by the Appeals Council on May 31, 2002. (Tr. 5-6). This action followed.

B. Facts

1. Aviles's Testimony

Plaintiff was born in Brooklyn on April 3, 1978, and was twenty-three years old on the date of the ALJ's decision. (Tr. 29, 86). He had attended special education classes for his entire school career and graduated from high school in January 1997. (Tr. 42-43, 96).

On June 3, 1998, plaintiff injured his back in a motor vehicle accident and, after his condition was improved by physical therapy, re-injured his back in a second automobile accident in February 2000. (Tr. 46-47). Plaintiff testified that he received treatment after the second accident and no longer had back pain. (Tr. 47-48, 53, 61). Plaintiff's only symptom at the time of the hearing was left hand pain resulting from a blood clot in his left arm. (Tr. 48-50). Plaintiff also stated that he had developed carpal tunnel syndrome and could only grasp with his left hand for four to five minutes. (Tr. 50-52). Plaintiff acknowledged that he was seeing a psychologist and taking medication to relieve his nervousness and anxiety. (Tr. 59-60).

Plaintiff testified that he lived with his mother and spent his time caring for his grandmother, running errands, and performing household chores at a slow pace. (Tr. 35-36, 67). He could only use his right hand to carry items from the store and operate a computer. (Tr. 57, 67). Plaintiff is left-handed. (Tr. 154). Plaintiff had received vocational training in auto mechanics, hair design, security, culinary arts, maintenance, computers, and office skills (such as typing). (Tr. 37-45, 54-56). Although plaintiff had obtained three jobs in the food services industry over the course of three months, he was fired from each of these positions after approximately one month because he was "too slow." (Tr. 62-65). At the time of the hearing, plaintiff had a part-time job one day per week feeding and assisting autistic children. (Tr. 65-66). He also volunteered at his church. (Tr. 66).

2. Medical Evidence

Psychologist Michael Kissin, Ph.D. treated plaintiff in the summer of 1998 for self-described "significant emotional distress" following the June 1998 car accident. (Tr. 129). Plaintiff reported that he was nervous, irritable, depressed, and had difficulty sleeping and concentrating. (Tr. 130). Dr. Kissin diagnosed adjustment disorder with mixed anxiety and depressed mood, and noted that plaintiff responded well to relaxation techniques and cognitive therapy. (Tr. 130-31).

On April 13, 2000, plaintiff was examined by consultative psychiatrist Harvey Barash, M.D., who noted, "There does not appear to be consistency for allegations of a psychiatric condition that would require more specialized psychiatric treatment at this time." (Tr. 145-46). According to Dr. Barash, plaintiff's memory, comprehension, concentration, persistency, and pace were without significant limitations, and his adaptability was restricted by a history suggesting a mildly limited intellect. (Tr. 146). Dr. Barash's diagnosis ruled out mild adjustment disorder and personality disorder, but noted a history of "borderline IQ." (Tr. 146). Dr. Barash concluded that plaintiff was "managing adequately without a more specialized psychiatric treatment." (Tr. 146).

Orthopedic consultant Mario Mancheno, M.D. also examined plaintiff, who told the doctor that he could not work because of pain in his lumbosacral spine. (Tr. 151). An examination of the thoracic-lumbosacral spine showed no scoliosis, rigidity, spasticity, or loss of lordosis, though some tenderness was noted from L4-S1 in the left and right paraspinal areas. (Tr. 151-52). X-rays of the lumbosacral spine revealed straightening of the normal curvature which was most consistent with an element of muscle spasm. (Tr. 152-53). Dr. Mancheno diagnosed a discogenic disorder of the lumbosacral spine, and determined that plaintiff was mildly restricted in lifting, carrying, sitting, pushing, and pulling due to tenderness and limitation of motion of the lumbosacral spine. (Tr. 152).

On May 10, 2000, plaintiff was examined by Christine Trier, Ph.D., a psychologist with the Office of Vocational and Educational Services for Individuals with Disabilities ("VESID"). (Tr. 199-200). Dr. Trier reported that plaintiff had difficulty controlling his anger and getting along with some people, and was easily provoked and distrustful of people. (Tr. 200). Although plaintiff was highly motivated to work, he required a supportive environment with low to moderate stress and extra time to learn new tasks. (Tr. 200).

On July 20, 2000, psychologist Jeffrey Beck, Ph.D. evaluated plaintiff for current functioning and suitability for training. (Tr. 201-03). An intelligence examination yielded a full scale IQ of 77 (a verbal IQ of 82 and a performance IQ of 74), indicative of borderline intellectual functioning. (Tr. 202-03). Dr. Beck stated that plaintiff was able to learn manual tasks that involved working with others, though training would have to be conducted by example due to plaintiff's weak reading skills. (Tr. 203).

Consultative psychologist Steven Fried, Ph.D. also conducted an intelligence examination on August 14, 2000 which revealed a full scale IQ of 69, a verbal IQ of 76, and a performance IQ of 67, reflecting cognitive functioning extending from the deficient to borderline range. (Tr. 154). However, Dr. Fried also noted that there were "significant variabilities suggestive of higher potential," and ruled out learning disorder, non-specific from his diagnosis. (Tr. 154-55). Dr. Fried concluded that plaintiff had "potential capabilities of making a low level work related adjustment" and the capacity to follow simple rules and regulations. (Tr. 155).

Erlinda Gagan, M.D. did not examine plaintiff but reviewed the evidence from the record and completed an assessment on October 11, 2000. (Tr. 170-87). Based upon the clinical evidence, Dr. Gagan determined that plaintiff was moderately limited in his ability to carry out detailed instructions, but was not otherwise significantly limited. (Tr. 184-85).

On January 9, 2002, treating physician Dr. Jacqueline Mayo reported that she had been treating plaintiff for carpal tunnel syndrome since April 2001 and noted that plaintiff complained of severe left hand tingling and numbness. (Tr. 214). Dr. Mayo indicated that plaintiff's left hand grip strength was two out of five and recommended physical therapy. (Tr. 215-16). In a report dated January 23, 2002, Dr. Mayo noted that plaintiff's diagnoses were carpal tunnel syndrome and decreased range of motion of the lumbar spine. (Tr. 218). In light of plaintiff's condition, Dr. Mayo stated that plaintiff was able to sit and stand for four (4) hours each and occasionally carry ten (10) pounds. (Tr. 219). Dr. Mayo also reported that plaintiff had a history of learning disability and attention deficit syndrome. (Tr. 219).

III. Analysis

A. Standard of Review

A district court's review of the denial of social security benefits is confined to a determination of whether there is "substantial evidence" to support the Commissioner's decision. 42 U.S.C. § 405(g) ("The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive. . . ."); see also Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) ("[W]e conduct a plenary review of the administrative record to determine if there is substantial evidence, considering the record as a whole, to support the Commissioner's decision and if the correct legal standards have been applied."). Therefore, even if the district court might have ruled differently were it to have made the initial determination, the court must affirm the Commissioner's decision if it is supported by substantial evidence. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982). It is important to note that "`the Social Security Act is a remedial statute which must be liberally applied; its intent is inclusion rather than exclusion.'" Id. (quoting Marcus v. Califano, 615 F.2d 23, 29 (2d Cir. 1979));see also Williams v. Bowen, 859 F.2d 255, 260 (2d Cir. 1988).

In the disability benefits context, substantial evidence has been defined as "`more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'"Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L.Ed. 2d 842 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). "In determining whether substantial evidence supports a finding of the [Commissioner], the court must not look at the supporting evidence in isolation, but must view it in light of the other evidence in the record that might detract from such finding, including any contradictory evidence and evidence from which conflicting inferences may be drawn." Rivera v. Sullivan, 771 F. Supp. 1339, 1351 (S.D.N.Y. 1991).

However, the "substantial evidence" test applies only to review of the Commissioner's factual determinations. This standard is irrelevant to the Commissioner's legal conclusions, as well as its compliance with applicable procedures mandated by statute or regulation, Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984), which are reviewed de novo. As noted in Jones v. Barnhart:

administrative decisions regarding claimants' eligibility for disability benefits have proven surprisingly vulnerable to judicial reversal. This vulnerability results primarily from the creation by the Commissioner, and the enforcement by the courts, of a variety of procedural obligations to which ALJs must scrupulously adhere. Failure to do so is treated as "legal error" permitting reversal of the ALJ's decision. . . . [A] district court reviewing a benefits denial may not simply accept the administrative determination because a cursory review of the record reveals plausible testimony or documentary evidence or expert opinion that supports the administrative determination. Rather, the record must be carefully developed and evaluated to determine whether the Commissioner fully complied with all the relevant regulations.

2002 U.S. Dist. LEXIS 7073, at *9, *14 (S.D.N.Y. Apr. 22, 2002) (citation omitted).

Moreover, and despite procedural compliance, the district court may still remand if new and material medical evidence surfaces that was not presented at the ALJ hearing. Santiago v. Massanari, No. 00-3847, 2001 U.S. Dist. LEXIS 9881, at *27 (S.D.N.Y. July 16, 2001) ("[T]he ALJ may turn out to be wrong even when he was right at the time the decision was rendered; the administrative proceeding is not quite over even when it's over. Medical reports sent [for the first time] to the Appeals Council, so long as they concern the time period in question, become part of the record for judicial review, even when the Council has denied review.").

When deciding whether the SSA's denial of disability benefits is supported by substantial evidence, the Court must be satisfied that claimant has had "a full hearing under the Secretary's regulations and in accordance with the beneficent purposes of the Act." Echevarria v. Secretary of Health Human Servs., 685 F.2d 751, 755 (2d Cir. 1982) (quoting Gold v. Secretary of Health, Educ. Welfare, 463 F.2d 38, 43 (2d Cir. 1972)). In light of the non-adversarial nature of benefits proceedings, the ALJ must affirmatively develop the record. Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999); Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996).

B. Determining Disability

Title XVI of the Social Security Act defines disability as the inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than twelve months. . . ." 42 U.S.C. § 1382c(a)(3)(A) (2000). An individual may be determined to be under a disability "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. . . ." Id. § 1382c(a)(3)(B).

Social Security Administration regulations establish a five-step sequential analysis by which the Commissioner is required to evaluate a claim for disability benefits. Christian v. Apfel, No. 01-6045, 2002 U.S. App. LEXIS 2817, at **2-3 (2d Cir. Feb. 21, 2002); 20 C.F.R. § 416.920 (2003). First, the Commissioner must determine whether the claimant is doing substantial gainful work. 20 C.F.R. § 416.920(b). Second, if the claimant is not doing substantial gainful work, the Commissioner must then determine whether he or she has a "severe impairment." Id. § 416.920(c). Third, if a severe impairment exists, the Commissioner must next consider medical evidence to determine if the impairment meets or equals a listed impairment in Appendix 1. Id. § 416.920(d). Fourth, if the condition does not qualify as a listed impairment, the Commissioner must analyze whether the impairment prevents the claimant from doing his or her past work. Id. § 416.920(e). Finally, if the claimant cannot perform past work, the Commissioner must determine whether the impairment prevents him or her from doing any other work. Id. § 416.920(f). If so, the Commissioner must find the claimant disabled. Shaw v. Chater, 221 F.3d 126, 132 (2d Cir. 2000); Williams v. Apfel, 204 F.3d 48, 49 (2d Cir. 1999). The claimant bears the burden of proof on the first four steps of the aforementioned analysis. However, once the claimant has met his or her burden, the burden shifts to the SSA. Shaw, 221 F.3d at 132.

When assessing an applicant's claim, the SSA must consider: (1) the objective medical facts; (2) diagnoses or medical opinions based on such fasts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience.Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam).

IV. Application of the Five-Step Sequence to Aviles's Claim

A. Aviles Was Not Engaged in Substantial Gainful Activity

The first step of the analysis is to determine whether plaintiff was engaged in substantial gainful activity, which is defined as work that "(a) Involves doing significant and productive physical or mental duties; and (b) Is done (or intended) for pay or profit." 20 C.F.R. § 416.910. The ALJ's ruling that plaintiff had not engaged in substantial gainful activity since the date of the application is undisputed. (Tr. 13).

B. Aviles Had a Severe Impairment

The second step is to determine whether plaintiff had a severe physical or mental impairment or combination of impairments that "significantly limit[ed] [his] physical or mental ability to do basic work activities." 20 C.F.R. § 416.920(c). The ability to do basic work activities means the ability and aptitude "to do most jobs." Id. § 416.921(b). Basic work activities include:

. . . walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling . . . seeing, hearing, and speaking . . . understanding, carrying out, and remembering simple instructions . . . use of judgment . . . responding appropriately to supervision, co-workers and usual work situations; and dealing with changes in a routine work setting."

Id. § 416.921(b)(1)-(6). The analysis at this step may result in only screening out de minimis claims. Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995). If, however, the disability claim rises above the de minimis level, then the analysis must proceed to step three. Id. Here, the ALJ found that plaintiff "had a history of back pain, carpal tunnel syndrome, learning disability and adjustment disorder and is considered to have a severe impairment. . . ." (Tr. 14). The ALJ's ruling that plaintiff had a severe impairment advances the analysis to step three.

C. Listing 12.05(C)

Impairments listed in Appendix I of the Regulations "are impairments acknowledged by the [Commissioner] to be of sufficient severity to preclude gainful employment. If a claimant's condition meets or equals the `listed' impairments, he or she is conclusively presumed to be disabled and entitled to benefits." Dixon, 54 F.3d at 1022; see also 20 C.F.R. Pt. 404, Subpt. P, App. 1. In the instant case, the ALJ concluded that plaintiff did not have an impairment or combination of impairments which met or equaled the requirements for a listed impairment. (Tr. 14-15).

Plaintiff contends that the ALJ improperly failed to consider intelligence test results and evidence of other impairments under the criteria of Listing 12.05(C). Listing 12.05 (C) relates to sub-average intellectual functioning caused by mental retardation, manifestations of which occur prior to age twenty-two (22). The Listing requires: (1) "[a] valid verbal, performance, or full scale IQ of 60 through 70" and (2) "a physical or other mental impairment imposing an additional and significant work-related limitation of function." 20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.05(C) (2000). Specifically, plaintiff claims the ALJ inappropriately disregarded the results of an IQ test and that his physical and mental problems satisfy the second prong of 12.05(C).

1. Plaintiff's IQ Examinations

On July 20, 2000, plaintiff was examined by Jeffrey Beck, Ph.D. Dr. Beck found that plaintiff had a full scale IQ of 77, which was indicative of borderline intellectual functioning, a verbal IQ of 82, and a performance IQ of 74. (Tr. 202-03). An intelligence examination administered to plaintiff by Dr. Fried on August 14, 2000 revealed a full scale IQ of 69, which reflected cognitive functioning extending from the deficient to borderline range, a verbal IQ of 76, and a performance IQ of 67. (Tr. 154). Plaintiff alleges that the IQ test administered by Dr. Fried satisfies the first prong of 12.05(C). The ALJ expressly noted that despite the test results, Dr. Fried concluded that there were "significant variabilities suggestive of higher potential." (Tr. 16, 154). However, and regardless of plaintiff's "potential," his test scores evidenced a below-average intellectual ability consistent with his history of special education schooling and inability to maintain a simple job. Moreover, the regulations provide that:

in cases where more than one IQ is customarily derived from the test administered, i.e., where verbal, performance, and full-scale IQs are provided . . ., the lowest of these is used in conjunction with listing 12.05.

20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.00(D). In this case, plaintiff's lowest score of 67 on his most recent test places him within the range of 12.05(C).

Plaintiff's prior low score of 74 also warranted careful consideration since, according to the Commissioner's Program Operations Manual System ("POMS"), "slightly higher IQ's (e.g. 70-75) in the presence of other physical or mental disorders that impose additional and significant work-related limitation of function may support an equivalence determination." POMS § DI 24515.056(D)(1)(c); see also Bubnis v. Apfel, 150 F.3d 177, 180 (2d Cir. 1998) (POMS guidelines "represent the Commissioner's interpretation of the statutory mandate, . . . deserve substantial deference, and will not be disturbed as long as they are reasonable and consistent with the statute."); Frerks by Frerks v. Shalala, 848 F. Supp. 340, 350 (E.D.N.Y. 1994) (POMS is entitled to persuasive authority.). Therefore, plaintiff's low IQ of 74 on the Beck test falls within the "slightly higher" range outlined by POMS § DI 24515.056(D)(1)(c), which requires an examination of other physical and mental disorders.

2. Additional and Significant Work-Related Limitation of Function

The specific test to be utilized in determining whether a claimant's "physical or other mental impairment" is "significant" for purposes of 12.05(C) is a subject upon which the Second Circuit has yet to rule. Other circuit courts are divided on this issue. Compare Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997) (adopting the "severity" test); Warren v. Shalala, 29 F.3d 1287, 1291 (8th Cir. 1994) (same); Nieves v. Sec. Health and Human Servs., 775 F.2d 12, 14 (1st Cir. 1985) (same), with Flowers v. U.S. Dep't of Health and Human Servs., 904 F.2d 211, 214 (4th Cir. 1990) (claimant is significantly limited if his or her prior work cannot be performed), and with Edwards v. Heckler, 755 F.2d 1513, 1514-15 (11th Cir. 1985) ("significant" requires something less than severe yet more than de minimis). Courts in this circuit have followed the First, Eighth, and Tenth Circuits, which consider whether the additional limitation, when viewed without regard to the claimant's low IQ, would satisfy the "severity" test at step two of the Commissioner's five-step process for determining disability. See Baneky v. Apfel, 997 F. Supp. 543, 546 (S.D.N.Y. 1998); Velezquez v. Chater, No. 93-264E(F), 1996 U.S. Dist. LEXIS 2803, at *2 (W.D.N.Y. Mar. 6, 1996).

The ALJ's finding at step two that plaintiff's back pain, carpal tunnel syndrome, learning disability, and adjustment disorder constituted a "severe impairment" referred to the limitations imposed by all of the physical and mental conditions combined. The ALJ did not determine in accordance with 12.05(C) whether plaintiff's back pain, carpal tunnel syndrome, or adjustment disorder, without consideration of his low IQ, significantly limited plaintiff's ability to do basic work activities. Additionally, since "the ALJ's analysis of the medical and testimonial evidence was undertaken in the context of the fourth step of the disability determination, and thus concerned plaintiff's residual functional capacity in light of his IQ and all other claimed conditions, that analysis is not insightful in terms of ascertaining which particular impairment(s) the ALJ found involved more than a de minimis limitation." Baneky, 997 F. Supp. at 547. Thus, the Commissioner must specifically determine whether any of plaintiff's limitations, except for his low IQ, satisfy the second element of Listing 12.05(C).

V. New Evidence

Plaintiff further contends that the Commissioner improperly failed to review his submission of new evidence, a psychiatric report from Dr. Samios, submitted on the same day that the Appeals Council denied his request for review. According to the Act, the Commissioner must consider additional evidence submitted by an applicant, "but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." 42 U.S.C. § 405(g)(2000). Dr. Samios's report should be considered on remand since it si material to plaintiff's mental disorders and the doctor's failure to provide the report before the Appeals Council denied the request for review establishes good cause for plaintiff's delay in submitting it.See Spain v. Barnhart, No. 02-4605, 2003 U.S. Dist. LEXIS 8882, at *10 (E.D.N.Y. May 29, 2003).

VI. Conclusion

Accordingly, plaintiff's motion is GRANTED and defendant's motion is DENIED. The matter is remanded to the Commissioner for further proceedings consistent with this opinion. The Clerk of Court is directed to close this case.

IT IS SO ORDERED.