Opinion
No. 01 Civ. 502 (BSJ) (DF)
October 29, 2002
REPORT AND RECOMMENDATION
TO THE HONORABLE BARBARA S. JONES, U.S.D.J.
INTRODUCTION
Defendant, Joanne Barnhart, Commissioner of Social Security ("Defendant"), filed a motion pursuant to Rule 12(c) of the Federal Rules of Civil Procedure for judgment affirming the decision of the Commissioner that plaintiff Jaime Pena ('Plaintiff') is not entitled to disability insurance benefits or Supplemental Security Income ("SSI") under the Social Security Act. Plaintiff has neither responded to Defendant's motion nor cross-moved.For the reasons set forth below, I recommend that the case be remanded for further proceedings, so that the Administrative Law Judge ("ALJ") may: (1) consider further evidence on the question of whether Plaintiffs past relevant work is appropriately categorized as "exertionally medium" type work; (2) after determining the appropriate categorization of Plaintiffs past relevant work, consider whether Plaintiff is capable of performing that work and, if not, whether there are other jobs in the national economy that Plaintiff is capable of performing; (3) determine whether, even if Plaintiff is not currently disabled, he is nonetheless entitled to benefits for any past, closed period of disability; and (4) set forth specific findings as to the credibility of Plaintiffs claims of pain, so as to permit full review of the determination.
BACKGROUND
Plaintiff was born on May 20, 1939, in the Dominican Republic, and came to the United States in 1969. (R. at 26-27.) Plaintiffs formal education lasted through the completion of sixth grade. ( Id. at 27.) From the time he arrived in the U.S. in 1969 until the onset of his claimed disability in 1995, Plaintiff worked continuously in a variety of jobs, ranging in duration from one to 14 years. ( Id. at 89.) He was last employed from 1990 to December 29, 1995, as a "manager's helper" in a shipping and receiving terminal. ( Id. at 28.) According to his Complaint, filed November 22, 2001, Plaintiff has been disabled since November 29, 1995. ( See Compl. ¶ 5.)
"R." refers to the record of the administrative proceedings.
The alleged bases of Plaintiffs claimed disability are not entirely clear. In the Complaint in this action, Plaintiff identifies his disability solely as "high blood pressure, cholesterol, and kidneys." ( See id. ¶ 4.) During a hearing before the ALJ, however, when asked why he stopped working, Plaintiff responded, "[t]hat time I had an ulcer and I was bleeding and I fell down at the job and I couldn't be assisted." (R. at 29.) The transcript then provides the following additional testimony:
Q: [ALJ]: Now, tell me what problems do you have now that prevent you from working.
A: [Plaintiff]: The high blood pressure, the pain in my kidneys, the operation I had which is really bad, I have, was like in 6 months under water.
Q: What operation was this?
A: He —
Q: Thyroid?
A: — the thyroid. Yes.
Q: When did you have that surgery?
A: '97. I do not remember the day.
Q: Okay. So you have the high blood pressure, the kidney pain, the thyroid surgery. Anything else?
A: Ulcer.
Q: Is that stomach ulcers?
A: Prostate.
Q: You have prostate problems?
A: Yes.
Q: Now, why are you using a cane?
A: Well, I use it because my back hurts a lot and that helps me to walk.
(R. at 29-30.)
Plaintiff also testified about other medical problems, including a tumor in his finger, for which he had surgery ( id. at 30), and the fact that one of his legs was longer than the other ( id. at 31), although it is unclear from his testimony whether he is claiming disability based on these additional problems. ( See id. at 30-31.)
A. Medical Evidence
The medical records that were before the ALJ spanned a period from October 1995 through October 1998, and indicated that Plaintiff had been evaluated and/or treated during that time for a number of ailments. Although much of this medical evidence appears unrelated to the allegations of disability contained Plaintiffs Complaint, nearly the entire medical record would be relevant if Plaintiffs claim were liberally construed to assert disability for all the reasons he raised before the ALJ. In brief, the medical evidence shows the following:
See Green v. U.S., 260 F.3d 78 (2nd Cir. 2001) ("[i]t is well settled that pro se litigants generally are entitled to a liberal construction of their pleadings"); see also Scott v. Comm'r of Soc. Sec. Admin., 2002 WL 31164581 at *3 (N.D.N.Y. Sep. 30, 2002) (in the context of a Social Security appeal, holding that "when a plaintiff, appears . . . pro se, the court must read the complaint liberally").
In October 1995, Plaintiff underwent diagnostic testing at Presbyterian Hospital. (R. at 123-33.) An electrocardiogram ("EKG") indicated a number of abnormal findings, such as sinus bradycardia, left ventricular hypertrophy, and ST and T wave abnormalities. ( Id. at 123.) The physician filing the EKG report also suggested that inferolateral ischemia be considered. ( Id.) In addition, Plaintiffs gastric biopsy revealed chronic, active gastritis caused by helicobacter pylori bacteria ("H. pylori"). ( Id. at 124.) Chest x-rays showed a mild enlargement of the heart, but no evidence of acute pulmonary disease. ( Id. at 125.) It also appears that, as the result of an ulcer, Plaintiff was admitted as an inpatient to Presbyterian Hospital on November 5, 1995, and was discharged a week later. ( Id. at 121.) He then was seen as an outpatient there on November 15, 1995, though it is unclear from the record what treatment he received. ( Id.) Presbyterian Hospital records dated January 10, 1996, record Plaintiffs conditions as hypertension and peptic ulcer disease, H. pylori positive. ( Id. at 122.)
On January 8, 1997, approximately a year after his last recorded visit to Presbyterian Hospital, Plaintiff was seen at the outpatient clinic of Bellevue Hospital Center ("Bellevue"). (R. at 159.) At that time, Plaintiff reported a history of peptic ulcer disease, hypertension, primary parathyroidism, and a stone in his right ureter. ( Id.)
On July 15 and July 22, 1997, Plaintiff was again seen as an outpatient at Bellevue, this time to be evaluated for pruritus (an itching of the skin). ( Id. at 105.) Plaintiff also reported weight loss, daily headaches on his left side, eye pain, and sensitivity to sunlight. ( Id.) After tests revealed elevated calcium levels in Plaintiffs blood, Plaintiff was diagnosed with hyperparathyroidism and hypertension, and was admitted as an inpatient and started on Atarax and hypertension medication. (R. at 93-94, 104-05, 108.) Plaintiffs abdominal x-rays revealed a non-dilated, non-obstructive bowel gas pattern and vascular calcifications in the pelvis. ( Id. at 98, 102.) The x-rays also noted "thoracolumbar scohosis with moderate degenerative changes of the lumbar and lower thoracic spine." ( Id.) In addition, Plaintiffs blood pressure appeared to be 220/110. ( Id. at 107.)
A physical examination on July 25, 1997, at Bellvue, indicated normal visual fields, no enlargement of Plaintiffs thyroid, clear lungs, and no skin rash. (R. at 95, 109.) Plaintiffs abdomen appeared on examination to be soft and non-tender. ( Id. at 95, 107, 109.) Other x-rays revealed bilateral lunate cysts and small osteophytes in Plaintiffs hands, although no evidence of hyperparathyroidism. ( Id. at 114-15.) Stomach biopsies tested negative for malignancies or ulcers, but demonstrated "chronic and minimally active gastritis," H. pylori associated. ( Id. at 168.) At the time of this examination, Plaintiffs calcium levels were not as high as they had been three days earlier. ( Id. at 95, 109.)
On July 29, 1997, Plaintiff underwent an upper endoscopy, which showed a normal esophagus with no evidence of inflammation, bleeding or perforation. ( Id. at 174, 180.) Plaintiffs gastric motility, however, appeared abnormal, and duodenal deformities suggested previous peptic ulcer disease. The treating physician at Bellvue was not able to rule out existing ulcers. ( Id.) On August 1, 1997, a CT scan of Plaintiffs abdomen showed kidney stones and hydronephrosis, and an upper gastrointestinal study revealed a small duodenal ulcer and gastroesophageal reflux disease. ( Id. at 93, 101, 104.) Plaintiff was discharged from Bellevue on August 1, 1997, in good condition, with a primary diagnosis of hyperthyroidism, and secondary diagnosis of hypertension and peptic ulcer disease. ( Id. at 92, 94, 104.) The attending physician prescribed, inter alia, Prevacid and blood pressure medication, and instructed Plaintiff to participate in activity "as tolerated." ( Id. at 94.) Plaintiff was also instructed to follow a diet low in fat, cholesterol, and salt. ( Id.)
Plaintiff was examined at Bellevue's Primary Care Clinic on August 28, 1997. (R. at 101.) At that time, Plaintiffs blood pressure was 220/120 and was considered to be under poor control, and Plaintiff was prescribed Norvasc. ( Id.) Plaintiff also reported experiencing headaches, twice a week, and heart palpitations. ( Id.) The examining physician assessed Plaintiff as having hyperparathyroidism, hypertension, and a duodenal ulcer, and Plaintiff was scheduled for follow-up consultations. ( Id.)
On November 14, 1997, Plaintiff was examined again at Bellevue and underwent a number of diagnostic tests. ( Id. at 186-88, 196.) On examination, Plaintiff reported that he was "completely asymptomatic" and experiencing no joint pain. ( Id. at 186.) An EKG demonstrated a normal sinus rhythm, left ventricular hypertrophy, and nonspecific ST and T wave abnormalities. ( Id. at 196.) An intravenous pyelogram ("IVP") was conducted and revealed a partially obstructing mid right ureteral stone with mild to moderate hypertrophy. ( Id. at 186.) A CT scan revealed a small "lower pile stone." ( Id. at 186.) Chest x-rays showed a "tortuous aorta" without focal consolidation or effusion, and an ultrasound suggested an oblong, hypoechoic mass on Plaintiffs right thyroid. ( Id.) Plaintiff was referred for surgical exploration of his neck. ( Id. at 195.)
Three days later, Plaintiff was admitted to Bellevue for the excision of an adenoma on his right parathyroid. ( Id. at 189.) Surgeons removed a benign right parathyroid adenoma, as well as a benign cyst in the right thyroid. ( Id. at 189-90, 197-98, 201-02.) Plaintiff was discharged on November 19, 1997, with his calcium levels reduced. ( Id. at 185.) At that time, Plaintiff was prescribed topical antibiotics and Tylenol 3 and instructed to perform activities "as tolerated." ( Id. at 191.)
Plaintiff participated in a follow-up examination on November 26, 1997, and, in notes from November 26 and December 1, he was reported to be "doing well," "healing well," and "looking well." (R. at 183-84.)
On December 18, 1997, Dr. Wei Kao performed a consultative examination of Plaintiff. (R. at 136-140.) Plaintiff described to Dr. Kao a history of anemia, hypertension, joint pain, kidney disease, hyperthyroidism, peptic ulcer disease, prostate disease, and poor vision. ( Id. at 136-37.) Plaintiff also indicated that he was taking Lisinopril for his hypertension, Zantac for peptic ulcer disease, Acetaminophen with codeine to alleviate his joint pain, and iron supplements. ( Id.) Upon examination, Plaintiffs blood pressure was 130/74, and his vision was 20/40 in the right eye, 20/70 in the left eye. ( Id. at 138.) Plaintiffs head, eyes, neck, gait and station appeared normal. ( Id.) Dr. Kao found no scohosis, muscle spasm, or tenderness in Plaintiffs spine. ( Id.) Plaintiffs cervical spine had a full range of movement, and a straight-leg — raising test was negative. ( Id.) Plaintiffs respiration, lungs, and heart sounds also appeared normal, as did his abdomen, including his liver and spleen. ( Id. at 139.) Normal active bowel sounds were heard. ( Id.) In addition, Plaintiffs extremities did not demonstrate swelling, deformities or redness, and his muscle strength was "adequate, symmetrical and commensurate with body build." ( Id.)
Dr. Kao also noted that Plaintiff was able to make a full fist bilaterally and stand on his toes normally, though he was not able to perform a full squat. ( Id.) Plaintiffs neurological reflexes and sensations were normal, and no muscle tremors were identified. An EKG performed showed a regular sinus rhythm, with no significant ST or T wave changes or left ventricular hypertrophy. ( Id.) Plaintiffs cardiogram was within normal limits, and a chest x-ray demonstrated cardiomegaly, but no active pulmonary disease. ( Id.)
In his final assessment of Plaintiff, Dr. Kao considered Plaintiff to have: (1) hypertension, which was well controlled with present medications; (2) possible benign prostatic hypertrophy and a current urinary tract infection; (3) possible kidney disease; (4) mild osteoarthritis; (5) clinically stable anemia; and (6) stable peptic ulcer disease. (R. at 140.) Dr. Kao's ultimate opinion was that Plaintiff retained a "full" capacity with a "fair" prognosis, and that he could "function appropriately for his age." ( Id.)
On January 15, 1998, after Plaintiff claimed disability, and as part of a second consultative examination, Dr. Arnold J. Slovis completed a residual functional capacity assessment. ( Id. at 144-51.) Dr. Slovis made a primary diagnosis of hyperparathyroidism and a secondary diagnosis of hypertension. ( Id. at 144.) He opined that Plaintiff could occasionally lift 50 pounds and frequently lift 25 pounds, and that there were no limitations to standing, walking, sitting, pushing or pulling. ( Id. at 145.) According to Dr. Slovis, Plaintiff also did not have any postural, manipulative, visual, communicative, or environmental limitations. ( Id. at 146.)
"Postural" activities include climbing, balancing, stooping, kneeling, crouching, and crawling. ( See R. at 146.) Reaching, handling, fingering and feeling are each "manipulative" activities. ( See id.)
On February 25, 1998, Plaintiff underwent elective laser surgery, to remove a stone in his right ureter. ( Id. at 173, 176-78.) Surgeons broke up the stone and inserted a stent to prevent swelling and narrowing. ( Id.) Plaintiff did not experience any complications, and was discharged the next day. ( Id.)
Plaintiff returned to Bellevue as an outpatient on March 4, 1998, for surgery to remove a benign cartilaginous tumor in his left thumb. ( Id. at 152, 154, 170-71.)
On June 22, 1998, a follow-up upper endoscopy revealed mild inflammation of the esophagus and a deformed pylorus, which suggested previous peptic ulcer disease. ( Id. at 180-81.) The duodenum appeared normal, with no evidence of duodenal ulcers, masses, polyps, or inflammation. ( Id.) A colonoscopy performed the same day revealed small, internal hemorrhoids. ( Id. at 179.) A second gastric biopsy on June 26, 1998, showed no H. Pylon and no pathologic diagnosis. ( Id. at 172.)
On October 5, 1998, x-rays taken of Plaintiffs thoracic and lumbar spine demonstrated marked scohosis with secondary degenerative disease, evidenced by osteophyte formation and calcifications in disc spaces. ( Id. at 165-66.) Film of Plaintiffs spine while bending indicated that vertebral body heights and intervertebral disc spaces were "relatively normal." ( Id. at 167.) Plaintiffs radiology report noted sclerosis, "probably attributed to osteoarthritis from asymmetric, increased weight bearing on the right sacroiliac joint attributed to the patient's prominent scohosis." ( Id. at 166.)
B. Plaintiff's Testimony
Plaintiff testified that his work as a manager's helper required him to load and unload trucks with shipments of shopping bags (R. at 28), and that he worked with bags that weighed up to 100 pounds, using a hand truck during loading ( id.). Plaintiff further testified that he ceased his employment as of December 29, 1995, as the result of becoming ill with a bleeding ulcer, and that he was currently unable to work because of his high blood pressure, kidney pain, ulcers, prostate problems, back pain, and residual effects from his 1997 thyroid surgery. ( See supra at 2-3.)
According to his testimony, Plaintiff was able to grasp and hold, despite the removal of a tumor from his finger. (R. at 30.) He purchased a cane to alleviate his back pain when walking, and, although he walked daily for exercise, he could not walk more than three or four blocks because of leg pain. ( Id. at 31.) He wore shoes with special soles, because his legs were different lengths. ( Id. at 31.) He occasionally received help from his wife while dressing, and watched television during the day. ( Id.) Plaintiff testified that he was not able to do work around the house, and that he could travel by bus when assisted, but not on the subway because of his difficulty with stairs. ( Id. at 27.) He further testified that he received medical treatment at Bellevue, and that he saw many different doctors for his care. ( Id. at 30.)
PROCEDURAL BACKGROUND
On October 14, 1997, Plaintiff filed concurrent applications for disability insurance benefits and SSI, asserting that he had been disabled since November 29, 1995. ( See R. at 55-57, 211-14.)
The Social Security Administration ("SSA") denied Plaintiffs claims on January 14, 1998. (R. at 34-38, 216-18.) Plaintiff filed a request for reconsideration on January 20, 1998 ( id. at 39, 220), but, on March 17, 1998, SSA denied his request for reconsideration ( id. at 40-43, 220-23).
On May 6, 1998, Plaintiff requested a hearing before an ALJ (R. at 44, 224.) Pursuant to Plaintiffs request, a hearing was held on December 28, 1998, before ALJ Louis v. Zamora. ( See id. at 22-33.) Plaintiff, with the aid of a Spanish interpreter, was advised of his right to counsel, but testified that he wished to proceed without representation. ( Id. at 25.) At the hearing, the ALJ noted that he was going to try to arrange another consultative examination. ( Id. at 32.)
On June 9, 1999, the ALJ reopened the record to admit additional evidence. ( Id.) This evidence included documentation from the SSA and the New York Division of Disability Determination (the "DDD") that indicated that Plaintiff had failed to appear for his consultative examination, and that the agencies were unable to reach Plaintiff at his then-stated address or phone number. ( Id. at 32-33, 203-10.) It appears that the ALJ, through the SSA and DDD, also sought additional medical records regarding Plaintiff from Bellevue, but was unable to obtain them. ( Id. at 32-33, 203, 210.)
Finally, on July 10, 1999, the ALJ issued a decision denying Plaintiffs application for benefits. ( See id. at 11-21.) The ALJ determined that Plaintiff, who was 60 years old at the time of the determination, was a "person of advanced age," see 20 C.F.R. § 404.1563, 416.963, with "marginal education," see 20 C.F.R. § 404.1564, 416.964, and five years of "unskilled, exertionally medium" past relevant work experience, see 20 C.F.R. § 404.1568, 416.967, 416.968. ( See R. at 11-12.) The ALJ further determined that, while Plaintiff had a history of several medical conditions considered "severe" as defined by Social Security regulations, Plaintiff did not have clinical or laboratory findings which met in severity the clinical criteria of any impairment listed in Appendix 1 of the relevant regulations. ( Id. at 13.) The ALJ then concluded that, "[a]lthough [Plaintiff] ha[d] an underlying medically determinable impairment that reasonably could cause some of the pain and other physical symptoms he alleged . . . [his] symptoms [we]re not of such a severity, persistence, or intensity as to preclude all work activity." ( Id. at 18.) The ALJ concluded that, from November 29, 1995 through the date of the decision, Plaintiff was capable of performing his past relevant work, and that Plaintiff thus did not meet the disability requirements of the Social Security Act. ( Id. at 19.)
The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Plaintiffs request for review on September 27, 2000. (R. at 4-7.) The instant action followed.
DISCUSSION
Defendant has moved for judgment on the pleadings on the ground that the Commissioner's decision that Plaintiff was not entitled to benefits is supported by substantial evidence. (See Memorandum of Law in Support of the Commissioner's Motion for Judgment on the Pleadings, dated January 28, 2002, at 1, 11-19.) Despite warnings from the Court as to the potential consequences of failing to respond to this motion, Plaintiff has neither responded to the motion, nor cross-moved. Under the circumstances, this Court could recommend that Defendant's motion be granted on default pursuant to Local Civil Rule 7.1. Nonetheless, as Plaintiff is proceeding pro se, the Court has reviewed the administrative record, and is making this recommendation on the merits. See Hufana v. Apfel, No. 99 CV 3345 (FB), 2000 U.S. District Lexis 12208 at *2 n. 1 (E.D.N.Y Aug. 18, 2000); Cortez v. Apfel, No. 96 Civ. 7214 (AGS), 1998 U.S. District Lexis 14179 at *1 n. 2 (S.D.N.Y. Sept. 10, 1998).
On January 18, 2002, I cautioned Plaintiff that a failure to keep the Court informed as to his whereabouts could result in a recommendation that his appeal be dismissed for failure to prosecute. I reiterated my instructions and warning in a letter to Plaintiff dated March 26, 2002. After receiving Plaintiffs current address, I sent Plaintiff another letter, dated April 15, 2002, in which I extended Plaintiffs time to cross-move or file an opposition to Defendant's motion until May 13, 2002, and informed Plaintiff that, if he failed to respond, I would issue a report and recommendation based on Defendant's submission alone.
I. STANDARD OF REVIEW
Pursuant to the Social Security Act ("the Act"), the findings of the Commissioner as to any fact, "if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405 (g). 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 (1971) (internal quotations and citation omitted). Thus, where the Court finds that substantial evidence exists to support the ALJ's determination, the decision will be upheld, even if contrary evidence exists. See Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990); DeChirico v. Callahan, 134 F.3d 1177, 1182 (2d Cir. 1998) (decision affirmed where there was substantial evidence for both sides). This standard applies to findings of fact as well as to inferences and conclusions drawn from such facts. See Levine v. Gardner, 360 F.2d 727, 730 (2d Cir. 1966); D'Amato v. Apfel, No. 00 Civ. 3048 (JSM), 2001 WL 776945, at *3 (S.D.N.Y. July 10, 2001).
The Court must also review the ALJ's decision to determine whether the ALJ applied the correct legal standard. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999). "Where an error of law has been made that might have affected the disposition of the case, this court cannot fulfill its statutory and constitutional duty to review the decision of the administrative agency by simply deferring to the factual findings of the ALJ." Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984) (quoting Wiggins v. Schweiker, 679 F.2d 1387, 1389 n. 3 (11th Cir. 1982)). Thus, the Court reviews de novo whether the correct legal principles were applied and whether the legal conclusions made by the ALJ were based on those principles. See id.; see also Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987).
In situations where the ALJ has failed to report his or her findings with specificity, the Court may remand for further clarification. See, e.g., Pratts v. Chater, 94 F.3d 34 at *39 (2nd Cir. 1996) (quoting Parker v. Harris, 626 F.2d 225 at 235 (2d Cir. 1980)) ("When there are gaps in the administrative record . . . we have, on numerous occasions, remanded to the [Commissioner] for further development of the evidence.").
II. THE FIVE-STEP PROCEDURE PRESCRIBED BY THE SOCIAL SECURITY REGULATIONS
In order to establish entitlement to benefits under the Act, a plaintiff must establish that he or she has a "disability." See Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). The term "disability" is defined as an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423 (d)(1)(A). Moreover, under 42 U.S.C. § 423 (d)(2)(A):
[a]n individual shall 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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.
In evaluating a disability claim, the ALJ must follow the five-step procedure set out in the regulations governing the administration of Social Security benefits. See 20 C.F.R. § 404.1520; Diaz v. Shalala, 59 F.3d 307, 311 n. 2 (2d Cir. 1995); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam). First, the ALJ must determine whether the claimant is engaged in substantial gainful activity. See 20 C.F.R. § 404.1520. If not, the second step requires the ALJ to consider whether the claimant has a "severe impairment" that significantly limits his or her physical or mental ability to do basic work activities. Id. If the claimant does suffer such an impairment, then the third step requires the ALJ to determine whether this impairment "meets or equals a listed impairment in Appendix 1" of the regulations. Id. If the claimant's impairment meets or equals one of those listed, the claimant is presumed to be disabled "without considering the [claimant's] age, education, and work experience." Id. If the presumption does not apply, then the fourth step requires the ALJ to determine whether the claimant is able to perform his or her "past relevant work." Id. Finally, if the claimant is unable to perform his or her past relevant work, the fifth step requires the ALJ to determine whether the claimant is capable of performing "any other work." Id.
In making a determination by this process, the ALJ must consider four sources of evidence: "(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) (internal quotations and citation omitted).
Under the procedure set out in the governing regulations, "[t]he claimant bears the initial burden of showing that his impairment prevents him from returning to his prior type of employment." Berry v. Schweiker, 675 F.2d at 467 (2d Cir. 1982) (citations omitted); see also 20 C.F.R. § 404.1520. Once it has been determined that the claimant cannot perform his past relevant employment, the Commissioner then has "the burden of proving that the claimant still retains a residual functional capacity to perform alternative substantial gainful work which exists in the national economy." Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quoting Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986)); see also Mimms v. Heckler, 750 F.2d 180, 185 (2d Cir. 1984) ("The burden of proving disability is on the claimant. However, once the claimant has established a prima facie case by proving that his impairment prevents his return to his prior employment, it then becomes incumbent upon the Secretary to show that there exists alternative substantial gainful work in the national economy which the claimant could perform, considering his physical capability, age, education, experience and training") (citations omitted); 20 C.F.R. § 404.1520.
III. THE ALJ'S DETERMINATION
In this case, the ALJ followed the steps listed above, and, after reaching the fourth step, determined that Plaintiff was not disabled.
First, despite some evidence suggesting that Plaintiff received income in 1996, the ALJ found that Plaintiff had not engaged in substantial gainful work activity since the alleged onset date of his alleged disability, November 29, 1995. (R. at 13.) Second, the ALJ concluded that Plaintiff had a history of the following medical conditions: (1) hypertension; (2) thyroid disease; (3) peptic ulcer disease; (4) anemia; and (5) osteoarthritis, all conditions considered "severe" under the Social Security Regulations. ( Id. at 13, 19-20.) Third, the ALJ found that, despite these conditions, Plaintiff did not have impairments that met or equaled in severity the clinical criteria of any impairment listed in Appendix 1, Subpart P, 20 C.F.R. § 404. ( Id.) Fourth, the ALJ assessed Plaintiffs residual functional capacity, taking into consideration Plaintiffs subjective allegations and complaints, and concluded that Plaintiff was able to return to his past job as a "general helper in factories," which the ALJ categorized as "exertionally medium" activity. Based on that assessment, the ALJ further found that Plaintiff was capable of performing light or sedentary work. ( Id. at 14, 18-19) The ALJ did not find it necessary to reach the fifth step of the analysis.
When questioned about his work history, Plaintiff strongly insisted that he did not work after the alleged onset of his disability. Because of the difficulty in contacting Plaintiff subsequent to the hearing, the ALJ assumed, for the purpose of the sequential evaluation, and pending the submission of further evidence, that Plaintiff did not, in fact, engage in substantial gainful work activity after the alleged onset of his disability. ( See R. at 13.)
The functional capacity to perform medium work activity includes the functional capacity to perform light and sedentary work activity. 20 C.F.R. § 404.1567 (c), 416.967(c).
As the ALJ applied the correct legal principles by following the procedure set forth in the Social Security Regulations, the principal question for this Court is whether the ALJ's decision is supported by substantial evidence. In addition, the Court must determine whether the ALJ's findings are sufficiently complete and specific to allow full review of his determination.
A. The ALJ's Categorization of Plaintiff's Past Relevant Work as Exertionally "Medium" Was Not Supported by Substantial Evidence.
In evaluating the evidence, the ALJ stated: "The claimant's past relevant work experience was as a general helper in a factory for five years to 1995, which as [claimant] described it, was unskilled, exertionally medium type work." (R. at 12.) Then, without offering any further basis for his categorization of Plaintiffs past employment as exertionally "medium," the ALJ went on to analyze whether Plaintiff had demonstrated that he was unable to perform work in that exertional category. ( See id. at 15, 17, 19, 20.)
Plaintiffs actual description of his past relevant work, however, does not appear to support the ALJ's categorization of that work. Extertionally "medium" work is defined as "lifting and carrying no more than 50 pounds at a time and frequent lifting and carrying of no more than 25 pounds at a time." 20 C.F.R. § 404.1567 (c), 416.967(c). Here, Plaintiff testified that his job as a manager's helper involved loading and unloading trucks with items weighing up to 100 pounds, and that he utilized a hand truck to move those items. (R. at 28.) Plaintiff did not testify, however, as to whether (and with what frequency) he was required to lift or carry 100-pound items in order to place them on, or remove them from, the hand truck, and the ALJ made no inquiry on this point. If Plaintiffs past relevant work required him to lift up to 100 pounds, even infrequently, then his past work should have been classified as exertionally "heavy." As it stands, the record is unclear as to how Plaintiffs past relevant work should be categorized, and does not contain substantial evidence to support the ALJ's determination on this point.
In order to perform a full range of medium work, a claimant must also be able to stand or walk for approximately 6 of 8 hours in a workday. See Social Security Ruling 83-10, 1983 WL 31251, at *6 (S.S.A. 1983). Further, "[u]se of the arms and hands is necessary to grasp, hold, and turn objects," and frequent crouching and "bending-stooping" is required. Id.
Exertionally "heavy" work entails, among other things, "lifting no more than 100 pounds at a time with frequent lifting or carrying of objects weighing up to 50 pounds." 20 C.F.R. § 404.1567 (d), 416.967(d).
B. If Plaintiff's Past Relevant Work Was Exertionally "Heavy," Then the ALJ's Determination That Plaintiff Was Not Disabled Would Not Be Supported by Substantial Evidence.
If, upon clarification of Plaintiffs testimony, it should be determined that Plaintiffs past relevant work was exertionally "heavy" type work, then, based on the medical evidence in the record, the ALJ's ultimate determination that Plaintiff was not disabled would also be called into question. According to Dr. Slovis's 1998 Residual Functional Capacity Assessment of Plaintiff (the only medical evidence addressing the issue), Plaintiff was only able to lift 50 pounds occasionally, and 25 pounds frequently. ( Id. at 145.) This would not be sufficient to enable Plaintiff to perform work categorized as exertionally heavy. ( See supra at n. 8.)
Further, if Plaintiff actually were unable to perform the exertional requirements of his past relevant work, then it would be necessary to reach the fifth step of the analytic procedure set out in the governing regulations — in other words, it would have to be determined whether Plaintiff, nonetheless, would be able to perform "any other work that exists in significant numbers in the national economy." See 20 C.F.R. § 404.1520 (e)(f). Although it may seem obvious that, having already found Plaintiff capable of performing exertionally "medium" work, the ALJ would find, on this fifth step, that alternative work was available to Plaintiff, the regulations do not envision any such short-cut approach that would obviate the need for a full analysis. Further, as noted above, the burden of proof shifts on the fifth step of the analysis, requiring the Commissioner to establish that the claimant retains a residual functional capacity to perform alternative gainful work. As it currently stands, the ALJ's decision does not analyze the evidence based on a shifted burden of proof.
For these reasons, I recommend that this case be remanded, so that (a) the record can be clarified as to the exertional requirements of Plaintiffs past relevant work, and (b) if necessary, the ALJ can perform the fifth step in the legal analysis as to whether Plaintiff is entitled to disability benefits.
C. The ALJ Failed To Make Specific Findings as to Whether There Were Any Closed Periods of Time During Which Plaintiff Qualified for Disability Benefits.
In determining whether Plaintiff is entitled to disability benefits, it is also necessary to consider every period during which Plaintiff may have been disabled. Because of the multifaceted nature of Plaintiff's medical complaints — ranging from hypertension, to peptic ulcer disease, to parathyroidism, to kidney stones, to prostate problems, to back and leg pain — the potential arises in this case for Plaintiff to have been disabled by one type of physical condition for one period of time, and by another type of condition for another (possibly overlapping, possibly separate) period of time. Indeed, it appears that Plaintiffs' various medical problems arose at different points over a period of at least two years, and that his treatment for these problems met with varying degrees of success. Under the circumstances, the ALJ should have considered not only whether Plaintiff was disabled at the time of the hearing, but also whether Plaintiff was entitled to disability benefits for any closed, continuous period of not less than 12 months, following the date of his claim. See 42 U.S.C. § 1382c(a)(3)(A), 42 U.S.C. § 423 (d)(1)(A).
The ALJ acknowledged his need to determine the issue of "whether the claimant was under a disability . . . and, if so, when such disability commenced and the duration thereof." (R. at 12.) Further, at the end of his analysis, the ALJ concluded that Plaintiff "was not disabled . . . at any time since November 29, 1995, the disability onset date, through the date of this decision." ( Id. at 19; see also id. at 21 ("claimant was not under a 'disability' . . . at any time through the date of this decision").) Yet the ALJ's decision seems to have been based principally on his assessment of Plaintiffs capabilities at the time of the hearing. For instance, after accepting that Plaintiff "may have experienced some pain and discomfort in the past, the ALJ noted that "such conditions appear to have resolved" ( id. at 18-19), and further observed that Plaintiff did not appear to be in pain at the time of the hearing ( id. at 19). The ALJ did not address the question of when Plaintiffs various conditions had "resolved." Nor did the ALJ make any specific findings as to whether any pain that Plaintiff had experienced prior to the date of the hearing was incapacitating, and, if so, for how long.
Because the ALJ did not inquire as to the duration of the symptoms that Plaintiff claimed to have suffered in connection with his various ailments, I further recommend that this action be remanded for the purpose of enabling the ALJ to make specific findings on the question of whether Plaintiff was entitled to disability benefits for any past, closed period, even if the ALJ should find that Plaintiff is not entitled to such benefits on a going-forward basis.
D. The ALJ Failed To Make Specific Findings as to the Credibility of Plaintiff's Subjective Complaints of Pain.
Finally, in assessing whether, for any relevant period, Plaintiff was disabled as a result of pain, it is necessary to consider Plaintiffs subjective complaints of pain. At the hearing before the ALJ, Plaintiff testified that one of the problems that kept him from working was kidney pain. (R. at 29.) He also testified to back pain, stating that he uses a cane to walk because his back "hurts a lot" ( id. at 30), and to leg pain, stating that he could only walk for three or four blocks because his legs "hurt very much" ( id. at 31).
Although the medical evidence does contain references to kidney stones ( see, e.g., id. at 93, 101, 104), and also contains references to other conditions, such as scohosis ( see id. at 165-66) that could have resulted in back and/or leg pain, it is certainly not clear that the medical evidence substantiates all of Plaintiffs subjective complaints of pain. On this question, the ALJ found, as noted above, that Petitioner's past pain and/or discomfort had "resolved," and "do not impose any significant restrictions affecting his ability to work." ( Id. at 18-19.) The ALJ further concluded that Plaintiffs subjective complaints were "not of such a severity, persistence, or intensity as to preclude all work activity," and that Plaintiffs statements "regarding disabling symptoms and functional limitations are not supported by the objective medical evidence of record, clinical findings, medical treatment received, or his own statements regarding his activities of daily living." ( Id. at 18.)
In satisfying his burden of demonstrating that he was unable to perform his past work, Plaintiff was required to "furnish such medical and other evidence of the existence thereof as the Commissioner of Social Security may require." 42 U.S.C. § 423 (d)(5)(A). The statute further states that:
An individual's statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability.
( Id.)
Where, however, a claimant's subjective testimony as to pain is not fully supported by the available medical evidence, the ALJ may not simply reject the claimant's testimony without addressing it. Rather, the ALJ must make specific findings as to the claimant's credibility. See Donato v. Secretary of Health and Human Services, 721 F.2d 414, 418-19 (2d Cir. 1983). In making such findings, the ALJ should consider a number of factors, including the claimant's work history. See Montes-Ruiz v. Chater, 129 F.3d 114 (Table), at **2 (2d Cir. 1997) ("A proper consideration of credibility should have involved considering factors such as evidence of a good work record, which this Court views as entitling a claimant to 'substantial credibility.'"); see also Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir. 1983) (evidence of a good work record is evidence of credibility). In fact, the Second Circuit has held that an ALJ's failure to take into account a claimant's work record "when making specific findings as to his [or her] credibility" is "contrary" to the law in this circuit and the SSA's rulings. Montes-Ruiz v. Chater, 129 F.3d at **3.
Here, although Plaintiff was only employed at his last job for five years, he appears to have had a steady work history that, in total, spanned more than 25 years — with 19 of those years spent as a "manager's helper." ( See R. at 90.) Based on this lengthy work history, Plaintiffs "reports of pain may well be deserving of greater deference than given by the ALJ." Hohl v. Chater, No. 95 Civ. 4479 (DC), 1997 WL 651472, at *9 (S.D.N.Y. Oct. 20, 1997). I therefore also recommend that this matter be remanded so that the ALJ may make specific findings as to Plaintiffs credibility with regard to his alleged pain, specifically in light of Plaintiffs substantial work history.
CONCLUSION
For the foregoing reasons, I recommend that the Defendant's motion for judgment on the pleadings be denied, and the case remanded for further findings as to: (1) the appropriate exertional classification of Plaintiffs past relevant work, (2) whether Plaintiff is capable of performing that work and, if not, whether he is capable of performing alternative work available in the national economy; (3) whether, if Plaintiff is not entitled to disability benefits going forward, he is nonetheless entitled to benefits for any past, closed period; and (4) Plaintiffs credibility as to his claims of pain.
Pursuant to 28 U.S.C. § 636 (b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Barbara S. Jones, United States Courthouse, 40 Centre Street, Room 2103, New York, New York 10007, and to the chambers of the undersigned, United States Courthouse, 40 Centre Street, Room 631, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Jones. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985), reh'g denied, 474 U.S. 1111 (1986); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822 (1994); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).