Opinion
01 Civ. 8659 (SHS)
November 8, 2002
OPINION AND ORDER
Benjamin Lecler brings this action pro se pursuant to Section 205(g) of the Social Security Act ("the Act"), 42 U.S.C. § 405(g), to challenge a final determination by Jo Anne Barnhart, Commissioner of Social Security (the "Commissioner"), denying Lecler Social Security Disability Insurance ("SSDI") benefits. The Commissioner has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). As set forth below, defendant's motion is denied and the case is remanded for further proceedings.
BACKGROUND
I. Administrative Proceedings
Lecler filed an application for SSDI benefits on April 12, 1996, on the grounds that he became disabled on January 11, 1996. (R. 54). The application was denied initially and upon reconsideration. (R. 35-38, 41-44). Lecler requested a de novo hearing before an administrative law judge ("ALJ") to review that determination, and that hearing was held on February 24, 1998. (R. 20-32). Plaintiff, appearing pro se, appeared and testified at the hearing. ( Id.). The hearing reopened on May 20, 1998 to admit additional exhibits. (R. 32). On June 18, 1998, the ALJ denied Lecler's claim. (R. 7-19). The Appeals Council subsequently denied plaintiffs request for review and affirmed the ALJ's decision. (R. 3-4).
References to "R. ___" are to the relevant pages of the record of proceedings prepared by the Commissioner.
II. Lecler's Testimony
Lecler testified at the ALJ hearing that he was born in Puerto Rico on November 7, 1945, that he had completed seven years of school and had moved to the contimental United States in 1967. (R. 24-26, 77). He did not understand, speak, read or write English. (R. 24). He formerly worked in a gasoline station and in stores, though there is no documented work history. (R. 26, 77). Lecler rents a room alone on the fourth floor of a building without an elevator. (R. 25-26). Sometimes he travels alone on public transportation, but he spends the majority of his day watching television at a local laundromat or at his home. (R. 26, 30, 31).
Lecler claims that he has been disabled and has not worked since January 11, 1996, following the amputation of two toes on his right foot. (R. 26). He also claims to suffer from diabetes mellitus, arthritis, hypertension and depression. (R. 39, 45, 96). He testified that he has no problem sitting but that he does not have any strength and can only stand for five minutes without holding onto something. (R. 26-28). He can walk up to five blocks and can lift a "small package" weighing approximately 10 pounds. (R. 28-29).
III. Medical Evidence
The record does not the receipt of any medical treatment prior to January 11, 1996, when plaintiff was admitted to Montefiore Hospital. At Montefiore, he was diagnosed with right foot cellulitis with gangrene in the first toe and part of the second and third toes. (R. 122). Surgery was performed for debridement of the right foot and amputation of the first and second toes on the right foot. (R. 129-130). Lecler underwent hydrotherapy and physical therapy while in the hospital. (R. 122). He was also diagnosed with diabetes and peripheral vascular disease and was prescribed oral medication. ( Id.). Lecler was discharged on January 18, 1996 and was recorded as ambulating independently. ( Id.).
Undated post-surgery treatment notes indicate that Lecler complained of stiffness in his right hand, especially while flexing his fingers, as well as pain, especially during cold weather. (R. 113). There was no gross deformity in his right hand and no limit of movement. ( Id.). He also complained of pain in his foot. ( Id.).
Lecler was seen again at the Montefiore clinic for a follow-up visit with Dr. Shah six months after his discharge. (R. 104-108). Dr. Shah noted that Lecler had difficulty ambulating, as the amputation wound had not healed completely, and noted that Lecler suffered from mild high blood pressure and diabetes. (R. 105).
While obtaining follow-up treatment at the Montefiore Clinic, Lecler began the process of applying for SSI benefits. On May 19, 1996, Dr. Rosenberg performed a Residual Functional Capacity Assessment of Lecler for the period ending "12 Months After Onset"; i.e., ending February 1997. (R. 57). Dr. Rosenberg concluded that Lecler had the exertional capacity to occasionally lift 20 pounds and frequently lift 10 pounds and was able to stand approximately 6 hours out of an 8-hour workday and sit for the same amount of time. (R. 58). There was no explanation below the checked boxes on the Residual Functional Capacity Assessment form or further explanation of Dr. Rosenberg's conclusions. In regard to postural limitations, Lecler was diagnosed as being occasionally impaired for climbing, balancing, stooping, kneeling, crouching, and crawling. (R. 59). On October 1, 1996, the disability examiner, H. Whiting, reaffirmed Dr. Rosenberg's assessment, finding that Lecler's residual functional capacity would be unchanged through February 1997. (R. 64).
Lecler underwent several consultative examinations in the fall of 1996 to determine his disability status. On September 16, 1996, Lecler was examined by Dr. Michael Polak. (R. 133). Dr. Polak noted that Lecler lived alone in an apartment in the basement in a building with no elevator. ( Id.). Dr. Polak reported that Lecler cleaned the house and did other household chores without help. ( Id.). Although Lecler arrived with a cane, Dr. Polak reported that Lecler could ambulate without a cane. (R. 134). Examination of Lecler's right foot revealed transmetatarsal amputation of the first and second toes. ( Id.). There was no evidence of infection, stasis dermatitis or ulceration, and the wound appeared well healed. ( Id.). Dr. Polak diagnosed Lecler as (1) status post-transmetatarsal amputation of right first and second toes; (2) diabetes mellitus; (3) history of alcohol abuse; and (4) depression. (R. 135). Dr. Polak diagnosed Lecler as mildly impaired for walking, yet he claimed Lecler would have no difficulty lifting/carrying, pushing/pulling, bending, sitting or squatting. Lecler's overall prognosis was "fair." ( Id.).
Lecler was also examined on September 16, 1996 by consultative examiner Dr. Luis Zeiguer to determine his psychiatric condition. (R. 137). Dr. Zeiguer reported that Lecler was able to use transportation by himself and did his chores himself. ( Id.). Lecler exhibited a demeanor that suggested he was responsive, logical and reality oriented. ( Id.). Lecler's concentration, orientation, memory and his judgment were adequate "for all the observed circumstances." ( Id.). The examination included concentration, orientation and memory exercises, as well as solving analogies. Dr. Zeiguer concluded that Lecler showed good enough concentration for simple, repetitive chores and his overall prognosis was "fair." (R. 137-138).
On October 9, 1996, Lecler underwent a psychiatric exam performed by Dr. Peter Kudler. Dr. Kudler diagnosed Lecler with a personality disorder and substance abuse (ethanol abuse), but concluded the impairments were not severe due to a lack of behavioral and physical changes. (R. 65-72).
On December 27, 1996, Karen Crustin, R.N., of the Montefiore Home Health Agency, reported that Lecler had been prescribed: (1) Micronase to control blood sugar; (2) Cipro, an antibiotic; (3) Monopril to lower blood pressure; and (4) Tylenol No. 3 for pain. (R. 142).
Following the hearing before the ALJ on February 24, 1998, Lecler underwent further consultative examinations. On April 3, 1998, Dr. Joseph Grossman performed a consultative physical examination. (R. 148-151). During the examination, Lecler stated that he performed household chores with the help of a friend but he was unable to work because of diabetes, joint pain, hypertension and depression. (R. 148). Dr. Grossman reported that Lecler had no difficulty undressing and dressing, or getting on and off the examining table. (R. 149). Lecler walked with a slow gait, and could walk without a cane. ( Id.). Examination of the extremities revealed normal joints with full range of motion and no swelling, redness or heat. (R. 150). Dr. Grossman described muscle strength as adequate, symmetrical and commensurate with body build. ( Id.). Lecler could stand on his toes normally and perform a full squat. ( Id.). Dr. Grossman reported that the first and third toes on the right, and the first and second toes on the left had been amputated with flexion deformity of the other toes. ( Id.).
After the examination and a review of Lecler's medical records, Dr. Grossman diagnosed a history of: (1) alcohol abuse, not in remission; (2) diabetes mellitus with peripheral vascular disease and toe amputations; (3) joint pain, not clinically correlated; (4) hypertension, borderline at present; and (5) depression, without past suicidal effort. (R. 151). Dr. Grossman diagnosed Lecler as functionally impaired for prolonged rapid walking and climbing, and for fine foot controls bilaterally and concluded that Lecler was not impaired for bending, stooping, crouching, standing, sitting, lifting, hand controls, pushing, hearing, speech or travel. (R. 151). Dr. Grossman's prognosis of Lecler was "guarded." ( Id.).
On April 3, 1998, Dr. Gerardo Tapia conducted a consultative psychiatric examination. (R. 144). He reported that Lecler had never had psychiatric treatment. ( Id.). Lecler stated that he lived alone in a rented room and spent his time watching television, listening to music and going out to buy drinks. ( Id.). Dr. Tapia reported that Lecler was walking with a cane and diagnosed an adjustment disorder, but opined that Lecler had a good ability to understand, carry out, and remember instructions. ( Id.). He concluded that Lecler had a good ability to respond to supervision and co-workers in a work setting. ( Id.). Dr. Tapia's prognosis of Lecler was "good." (R. 145).
DISCUSSION
I. Standard of Review
In reviewing a denial of SSDI benefits, a court may reverse the Commissioner's finding only if that finding is "based upon legal error or is not supported by substantial evidence" in the record. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); see 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is "`more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson, 402 U.S. at 401 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see Rosa, 168 F.3d at 77. "The substantial evidence test applies not only to findings of basic evidentiary facts but also to inferences and conclusions drawn from such facts." Tillery v. Callahan, 1997 WL 767561, *2 (S.D.N.Y. Dec. 11, 1997) (citation omitted). Moreover, a court "`may not substitute its own judgment for that of the [Commissioner], even if it might have reached a different result upon a de novo review.'" Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) (quoting Valente v. Secretary of Health and Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984)).
II. Disability Pursuant to the Act
In order to establish disability pursuant to the Act, an individual must demonstrate that he or she was unable "to engage in any substantial gainful activity by reason of a physical or mental impairment that . . . [h]ad lasted or could have been expected to last for a continuous period of at least twelve months." 42 U.S.C. § 423(d)(1)(A); see Rosa 168 F.3d at 77. The impairment must be demonstrated by "medically acceptable clinical and laboratory techniques." 42 U.S.C. § 423(d)(3). Furthermore, it must be "of such severity that [the plaintiff] 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." 42 U.S.C. § 423(d)(2)(A); see Rosa, 168 F.3d at 77.
The Commissioner has established a five-step procedure for evaluating disability claims. See 20 C.F.R. § 404.1520. The U.S Court of Appeals for the Second Circuit articulates the doctrine as follows:
First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience. . . . Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform. Rosa, 168 F.3d at 77 (quoting Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam)).
If the claimant fulfills her burden of proving the first four steps, then the burden shifts to the Commissioner to determine the fifth step — whether there is alternative substantial gainful work in the national economy that the claimant can perform. See id. The Commissioner must consider four factors: (1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (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. Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (citations omitted).
II. The Commissioner's Determination of Plaintiff's Residual Functional Capacity Was Not Supported by Substantial Evidence
a. Lecler's Strength Limitations
The Commissioner's burden is not met by the ALJ's conclusory statement that plaintiff has the capability to perform medium work. In making any determination as to a claimant's disability, the Commissioner must explain what physical functions the claimant is capable of performing. See Ferraris v. Heckler, 728 F.2d 582, 585 (2d Cir. 1984); Kerner v. Flemming, 283 F.2d 916, 921 (2d Cir. 1960); Deutsch v. Harris, 511 F. Supp. 244, 249 (S.D.N.Y. 1981). More specifically, the Commissioner must demonstrate through medical evidence whether and to what extent plaintiff is capable of performing each of the residual functional capacity ("RFC") elements and come to a conclusion as to plaintiffs end result RFC. 20 C.F.R. § 404.1546; see Sullivan v. Secretary of Health and Human Serv's., 666 F. Supp. 456, 460 (W.D.N.Y. 1987). The narrative discussion requirements of the Commissioner in assessing RFC have been set forth in the 1996 Social Security Ruling that states, "[t]he RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations)." Social Security Ruling 96-8p, *7 (S.S.A. 1996). Moreover, in assessing RFC, the Commissioner must make his own findings, specifying what functions a plaintiff is capable of performing, and not simply make conclusory statements regarding a plaintiffs RFC. 20 C.F.R. § 404.1546; Townley v. Heckler, 748 F.2d 109, 113 (2d Cir. 1984) (ALJ made no independent conclusion of RFC of plaintiff).
The ALJ found that Lecler retained the residual functional capacity for medium work. (R. 16). Later in his findings, the ALJ wrote "there is no documentation in the record of an impairment or combination of impairments which would preclude the claimant from engaging in medium work activity." (R. 11).
The Commissioner's regulations define medium work as involving lifting no more than fifty pounds at a time with frequent lifting or carrying objects weighing up to twenty-five pounds and standing for approximately six hours out of an eight-hour work day. 20 C.F.R. § 404.1567(c) and 416.967(c). In evaluating the claimant's RFC, the ALJ must consider strength and exertional capabilities. 20 C.F.R. Subpart P. § 404.1567.
The record is not sufficiently developed to determine whether Lecler can satisfy the lifting requirements for medium work. Lecler's REC assessment for the period ending "12 Months After Onset," performed by Dr. Rosenberg on May 19, 1996, is the only medical evidence that speaks directly to his lifting capacity. Dr. Rosenberg diagnosed Lecler as being able to lift 10 pounds frequently and 20 pounds occasionally. (R. 58). Dr. Rosenberg failed to explain how and why his assessment supported his conclusions or to cite specific facts upon which his conclusions were based although the Residual Physical Functional Capacity Assessment form issued by the Social Security Administration, and used by Dr. Rosenberg, requested such explanations.
This determination coincides with the requirements for light work, not medium work. Under the medical-vocational guidelines, an RFC of light work would render Lecler disabled according to the grid. See 20 C.F.R. Part 404 Subpart P. App. 2. § 202.09.
Upon reconsideration of Lecler's initial claim, the disability examiner, H. Whiting, reaffirmed the RFC assessment of Dr. Rosenberg, finding that Lecler's REC, and the strength limitations described therein, would be unchanged as of one year after the operation. (R. 64).
The other medical reports in the record speak vaguely to Lecler's exertional capabilities. Dr. Polak's consultative examination of Lecler on September 16, 1996 made no quantitative or qualitative conclusions as to Lecler's lifting capabilities. Dr. Polak stated that Lecler "should have no difficulty doing activities requiring dexterity, carrying/lifting, pushing/pulling, bending, sitting or squatting." (R. 135). However, there were no further conclusions as to the extent of these capabilities.
Dr. Grossman's consultative examination of Lecler on April 3, 1998 was equally vague. Dr. Grossman reported that Lecler's muscle strength was "adequate, symmetrical and commensurate with body build." (R. 150). Dr. Grossman made no concrete determinations regarding the extent of Lecler's muscle strength.
The only other evidence of Lecler's lifting capacity comes from Lecler's testimony. He testified that he could lift a "small package" weighing approximately 10 pounds. (R. 29). The ALJ asked no further questions regarding Lecler's lifting capacity.
The Second Circuit has found that failure to specify the basis for a conclusion as to residual functional capacity is reason enough to vacate a decision of the Commissioner. White v. Secretary of Health and Human Serv's., 910 F.2d 64, 65 (2d Cir. 1990); see also Ferraris, 728 F.2d at 586-88. There was no substantial evidence to support the ALJ's conclusion that Lecler can satisfy the lifting requirements for medium work. No doctor made specific findings as to Lecler's lifting capacity other than Dr. Rosenberg in his RFC Assessment in May 1996. Dr. Rosenberg's findings, albeit conclusory, supported a conclusion that Lecler was at most capable of performing light work. The ALJ, in his rationale and findings, made no reference to Dr. Rosenberg's report even though it was the only medical evidence that spoke directly to Lecler's exertional capabilities. As such, Lecler's residual functional capacity is indeterminable at this time.
b. Lecler's Daily Activities
An analysis of Lecler's daily activities, in conjunction with the vague medical evidence, still does not give substantial support to the ALJ's determination that Lecler had a residual functional capacity to perform medium work. To receive benefits under the Act, one need not be completely helpless or unable to function. Gold v. Secretary of Health, Ed. and Welfare, 463 F.2d 38, 41 n. 6 (2d Cir. 1972). Furthermore, "[t]he mere fact that he is mobile and able to engage in some light tasks at his home does not alone establish that he is able to engage in substantial gainful activity." Gold, 463 F.2d at 41 n. 6 (quoting Mullen v. Gardner, 256 F. Supp. 588, 591 (E.D.N.Y. 1966)).
Lecler testified at the ALJ hearing that he cleans and dresses himself, walks to the store and to the Laundromat, and occasionally walks to visit friends. Lecler's activities, in conjunction with the medical evidence, do not support a conclusion that he could occasionally lift 50 pounds and frequently lift 25 pounds as is required for medium work. Such findings cannot constitute a denial of disability benefits.
As this Court has concluded that the Commissioner failed to sustain its burden in supporting a conclusion of the lifting requirements for medium work, it is unnecessary to address arguments relating to the RFC standing/walking requirements.
Although the Commissioner is not entitled to a judgment on the pleadings based on the current record, neither is Lecler. When there are gaps in the administrative record or the ALJ has applied an improper legal standard, remand for a rehearing is often an appropriate remedy. See Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980); Marcus v. Califano, 615 F.2d 23, 28-29 (2d Cir. 1979). That is the case here. Therefore, this action will be remanded to the Social Security Administration for further proceedings.
CONCLUSION
The Commissioner's determination that plaintiff is capable of performing medium work is not supported by substantial evidence. Accordingly, defendant's motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) is denied and the case is remanded pursuant to the fourth sentence of 42 U.S.C. § 405(g) for further development of the record.