Opinion
02 CV 3363 (SJ)
December 4, 2003
LAURENCE BECK, ESQ., Brooklyn, NY, for Plaintiff
ROSLYNN R. MAUSKOPF, ESQ., John Kelly, Esq., Brooklyn, New York, for Defendant
MEMORANDUM AND ORDER
The Commissioner of Social Security ("the Commissioner" or "Defendant") moves to remand the above-captioned case for further administrative proceedings pursuant to 42 U.S.C. § 405(g), on the grounds that the ALJ did not fully develop the record or properly evaluate Plaintiff Gertrude Adler's impairments when determining that her impairments were not "severe" under step two of the test articulated in 42 U.S.C. § 423(d). Plaintiff cross-moves for judgment on the pleadings. Having listened to oral argument by both parties and carefully reviewed the administrative record and the parties' submitted briefs, the Court finds that Plaintiff's combined impairments were severe and remands the case for further proceedings by the Social Security Administration.
I. Procedural Background
Plaintiff filed an application for disability insurance benefits ("benefits") in October 1978. Plaintiff's application was denied that same month. In 1995, Plaintiff requested review of her claim pursuant toDixon v. Shalala, 54 F.3d 1019 (2d Cir. 1995). The Commissioner granted Plaintiff's request, however, she was later informed that her file could not be located and that her initial denial of benefits would remain in effect. Plaintiff requested a hearing. On April 19, 2001, Plaintiff appeared pro se 0before Administrative Law Judge David Z. Nisnewitz ("ALJ"). (Admin. R. at 12.) On November 26, 2001, the ALJ found that Plaintiff was not disabled. Id. The ALJ's decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review on April 25, 2002. (R. 5-6.)
Dixon was a class action lawsuit brought on behalf of claimants whose applications were denied at the second step of the sequential evaluation, on the grounds that their impairments were not severe.
On February 13, 2003, the Commissioner filed a motion for remand. Plaintiff filed a memorandum in opposition to the Commissioner's motion for remand and cross-moved for judgment on the pleadings. On April 2, 2003, Plaintiff submitted additional documentation regarding her medical condition.
II. Standard of Review
The Social Security Act states that "[t]he findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). A court may only set aside a final ruling by the Commissioner if the ruling is a result of legal error or is unsupported by substantial evidence. Id.; see also Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999). 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."Callahan, 168 F.3d at 77.
Remand is appropriate under § 405(g) where the ALJ has failed to provide a full and fair hearing, the administrative record has not been fully developed, or where the ALJ has misapplied legal standards.See Melkonyan v. Sullivan, 501 U.S. 89, 99 (1991).
III. Discussion
To determine whether an individual is entitled to disability benefits, the Commissioner employs a five-step sequential analysis. 42 U.S.C. § 423(d). First, the Commissioner determines whether the claimant is doing substantial gainful work. If the claimant is not, the Commissioner then determines whether the claimant has a severe impairment that limits his or her ability to do work-related activities. If such an impairment exists, the Commissioner then considers medical evidence to determine if the impairment meets or equals the criteria of an impairment listed in Appendices 1 to 20 C.F.R. Pt. 404, Subpt. P. (the "Listing of Impairments"). If the impairment does not meet or equal a listed impairment, the Commissioner proceeds to the fourth step and analyzes whether the impairment prevents the claimant from performing his or her past work. Finally, if the claimant cannot perform his or her past work, the Commissioner determines whether his or her impairment prevents her from doing any other work. If so, the Commissioner finds the claimant disabled.
Here, the ALJ found that Plaintiff did not have a severe impairment that significantly limited her physical or mental ability to do basic work activities. Specifically, the ALJ stated that "there is no medical evidence consisting of signs, symptoms and laboratory findings that establish an impairment or impairments that limit [Plaintiff's] ability to function." (R. at 16.) While the Commissioner concedes that the ALJ did not properly evaluate Plaintiff's impairments, the Commissioner maintains that "Plaintiff has not sustained her burden of showing that her condition was severe." (Def.'s Reply Mem. of L., at 1.) Specifically, the Commissioner asserts that Plaintiff's evidence consists of "bare statements about diagnoses and treatment" and that Plaintiff "has not shown how her impairments affected her ability to engage in basic work activities." Id. at 2. The Commissioner contends that a remand is necessary to obtain records that may have been destroyed and to obtain additional information from Plaintiff's treating physicians regarding the bases of their opinions.
Plaintiff avers that the evidence clearly shows that not only were her impairments severe, but that she was also disabled. As a result, Plaintiff contends that the Court should make a de novo determination that she is disabled and remand the case for a calculation of benefits. Alternatively, Plaintiff requests that the Court determine that her condition is severe and remand the case to the ALJ to complete the remainder sequential steps.
After careful consideration, the Court finds that Plaintiff's combined impairments were "severe" prior to the termination of her insured status in 1987. Diagnosis from two treating physicians — Dr. Mor Gluck ("Dr. Gluck") and Dr. Gary Zabarsky ("Dr. Zabarsky") — and a specialist — Dr. J. Liu ("Dr. Liu") — provide substantial evidence of the severity of Plaintiff's impairments. See Parker v. Harris, 626 F.2d 225, 232 (2d Cir. 1980) (holding that expert opinions of a treating physician as to the existence of a disability are binding on the fact finder unless contradicted by substantial evidence to the contrary).
In a statement dated January 6, 1977, Dr. Gluck wrote that Plaintiff was under his care for anxiety neurosis and reactive depression, manifested by nightmares, headaches, lack of ambition, irritability, insomnia and vertigo, accompanied by physical ailments, including arthritis. (R. 134.) In a statement dated April 3, 1979, Dr. Gluck diagnosed Plaintiff with phlebitis of the left leg and general rheumatoid arthritis. (R. 135.) On May 18, 1984, Dr., Gluck noted that Plaintiff had been disabled from a fall that occurred in March of 1984. (R. 136.)
Plaintiff submitted new evidence in which Dr. Gluck indicated that Plaintiff was disabled on a number of occasions. The Court need not evaluate this evidence in determining whether Plaintiff's impairments were severe. This new evidence, however, should be considered, if it is found to be material and necessary, during the administrative proceedings on remand.
On May 22, 2000, Dr. Zabarsky wrote a letter stating that he treated Plaintiff I from August 20, 1987 to October 30, 1989 for hypertension, anxiety, osteoarthritis, and other ailments. (R. 175.) On November 28, 2000, Dr. Zabarsky wrote another letter stating that Plaintiff's "severe disabilities [during his treatment period], prevented her from performing any kind of work duties." (R. 178). On October 27, 2000, Dr. Liu, a psychiatrist who did not directly treat Plaintiff but has verified, in his capacity as Attending Psychiatrist of Elmhurst Hospital, that Plaintiff underwent psychiatric treatment at Elmhurst Hospital between the years 1982 to 1992 and "was not able to work during the above mentioned years." (R. 181.) (emphasis added). The statements of Dr. Gluck, Dr. Zabarsky, and Dr. Liu support a finding that Plaintiff's combined impairments were "severe" prior to the expiration date of her insured status.
Moreover, diagnosis from other doctors who treated Plaintiff after 1987 are consistent with this assessment. Dr. George Braun ("Dr. Braun"), an ear, nose, and throat specialist, reported that Plaintiff has been continuously under his care since 1988. (R. 173.) Dr. Braun indicated that Plaintiff suffered from chronic headaches, dyskinesia, hearing loss and chronic sinus problems. (R. 175.) Dr. Braun further indicated that during the years between 1988 and 1992, Plaintiff was frequently unable to perform any kind of work and was bedridden on many occasions. Id.
Dr. Elisabeth Gomori, a cardiologist and internist, reported that she felt strongly that Plaintiff was severely disabled and was not able to perform any kind of work between the years 1988 to 1992. (R. 179.) Dr. Nancy Tarlin further reported that Plaintiff had a history of severe depression, which in combination with her multiple medical problems made it difficult for her to work. (R. 180.)
The Court declines Plaintiff's request to find her disabled. The Court remands the case for further administrative proceedings to complete the remaining steps in the five-step sequential process. The Court further declines Plaintiff's request to impose time deadlines on the readjudication of her claim upon remand. Lastly, the Court declines Plaintiff's request to make any findings regarding her transitory work activity.
IV. Conclusion
The Court reverses the ALJ's determination that Plaintiff was not disabled. The Court finds that Plaintiff's impairments were severe under step two of the five-step sequential process and remands the case for further administrative proceedings consistent with this opinion.
SO ORDERED.