Opinion
01 Civ. 353 (SAS)
April 18, 2002
Richard Cardinale, Esq., Irwin M. Portnoy, Esq., Portnoy and Marcus, P.C. for plaintiff.
John B. Gura, Jr. Assistant United States Attorney for the Southern District of New York, for Defendant.
OPINION AND ORDER
I. INTRODUCTION
Plaintiff, Deborah Williams, brings this action under Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g) (the "Act"), challenging the final determination of the Commissioner of Social Security (the "Commissioner") discontinuing plaintiff's eligibility for disability insurance benefits ("DIB"), and Supplemental Security Income ("SSI") benefits. Williams has moved and the Commissioner has crossmoved for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. The principal issue is whether this Court should remand the case so that the Commissioner can evaluate the new evidence submitted by plaintiff to the Appeals Council. For the reasons set forth below, the decision of the Commissioner is vacated and the case is remanded for further administrative proceedings.
Plaintiff's maiden name, Deborah A. Wheeler, was used in earlier administrative proceedings. See Transcript of Administrative Record filed as part of the Commissioner's Answer ("Tr.") at 28, 173.
Plaintiff obtained counsel on July 26, 2000. Until that date she appeared pro se.
II. BACKGROUND
A. Procedural Background
Plaintiff applied for DIB and SSI benefits on January 28, 1993, alleging an inability to work due to a back impairment resulting from a September 14, 1992 automobile accident. Tr. 55-57, 59, 88. The Social Security Administration ("SSA") denied her application initially and upon reconsideration. Tr. 60-63, 74-77. Plaintiff requested a hearing by an administrative law judge ("ALJ"). Tr. 78-79. The hearing was held on November 10, 1993. By decision dated December 10, 1993, the ALJ concluded that plaintiff was disabled due to functional limitations imposed by her back injuries. Tr. 173-76.
In September 1997, during a review of eligibility, the SSA determined that plaintiff's health had improved and that she was able to work. Tr. 205-208. Subsequently, the Commissioner discontinued DIB and 551 benefits. Id On May 5, 1998, plaintiff was examined by a disability hearing officer, who found her not disabled and capable of a full range of sedentary activities. Tr. 213-21, 233-34. Plaintiff submitted a request for reconsideration, dated June 10, 1998, alleging inability to work due to back, neck, left shoulder, and leg pain, migraine headaches, and the lack of qualifications to perform non-physical jobs. Tr. 240-59. In September 30, 1998, the Commissioner issued a notice of reconsideration, reaffirming the decision to discontinue benefits, stating that plaintiff's health had improved and that she was able to work. Tr. 235-37. Plaintiff then requested a hearing before an ALJ, which was held on May 7, 1999. Tr. 38-53. The ALJ issued an adverse decision affirming the Commissioner's action in discontinuing plaintiff's entitlement to benefits. Tr. 25-36. On July 18, 2000, the decision became final when the Appeals Council denied plaintiff's request for review. Tr. 20-21.
The Social Security regulations provide for disability hearings if the SSA has made "an initial or revised determination based on medical factors that [claimant is] not now disabled because [her] impairment: (i) has ceased; (ii) did not exist; or (iii) is no longer disabling." 20 C.F.R. § 404.914(a)(2). The disability hearings are "conducted by a disability hearing officer who was not involved in making the determination [that claimant is] appealing. The disability hearing officer will be an experienced disability examiner . . . appointed by a State agency or by the Director of the Office of Disability Hearings or his or her delegate." 20 C.F.R. § 404.915(a).
At plaintiff's request, the Appeals Council deferred further action on her case for a period of 45 days to await receipt of additional evidence. Tr. 18-21. On November 15, 2000, plaintiff submitted additional medical evidence. Tr. 4-17. On May 22, 2002, after considering the newly submitted evidence, the Appeals Council denied her request for review. Tr. 2. Plaintiff, dissatisfied with the outcome, filed this action.
B. Factual Background
1. Plaintiff's Personal History
Plaintiff is a 43-year old woman who lives with her husband and daughter. Tr. 43, 45, 55. Plaintiff has a tenth grade education. Tr. 92, 102. From June 1984 to June 1991, plaintiff held different positions such as assembly line worker, cleaner, nurse's aide, and cleaning supervisor. Tr. 96, 98-99. There is no record of plaintiff having any employment after June 1991 when she lost her job as a cleaning supervisor. Tr. 105.
In her request for reconsideration, plaintiff stated that she could drive for 20 minutes and could walk approximately one block before her knees would hurt. Tr. 244. Plaintiff takes care of her personal needs but needs help getting out of the bath and sometimes out of bed. Tr. 247. She does the laundry when she can and cooks occasionally, but her husband and daughter do most of the housework. Tr. 45. Plaintiff does dishes, but she can only stand for 10 to 15 minutes at a time. Her shopping is limited to picking up "one or two things." Tr. 47. Her daily activities includes watching television, listening to radio and doing crossword puzzles. Tr. 48, 50, 247, 255. She used to bowl but has stopped. Tr. 47, 48.
2. Subjective Complaints of Pain
In her request for reconsideration, plaintiff complained of having back, leg, left shoulder and neck area problems including pain and numbness. Tr. 244. At the hearing held on May 7, 1999, plaintiff claimed to be in pain everyday, complained of pain in her lower back, and stated that if she stood for more than 10 or 15 minutes she experienced leg numbness and knee pain. Tr. 44, 55. Plaintiff stated that following a back operation in July 1996, her feet would swell and blister. Tr. 45.
3. Medical Evidence
On September 13, 1992, Williams was injured in an automobile accident and treated at St. Francis Hospital for pain in her neck, shoulders, arms and hips. Tr. 119-120, 277-80. Plaintiff suffered a decreased range of motion in her shoulder, and multiple contusions. Tr. 277-80.
On February 14, 1996, Dr. K. Kridhna Murthy, a neurologist, examined Williams. Tr. 336-37. Plaintiff's cranial nerve examination was normal, plaintiff had a full range of movement of her cervical spine, and her deep tendon reflexes were normal in the upper extremities. Tr. 336-37. Dr. Murthy found some limitation of movement of the lurubosacral spine. Both flexion and extension were limited. IdStraight leg raising was 60% on the right side and 80% on the left side. On April 24, 1996, Dr. Murthy performed a lumbar myelogram on plaintiff. It revealed a minor ventral indentation in the lumbar region between the L4 and L5 vertebrae. Tr. 335.
On July 8, 1996, Williams underwent an arthroscopic microdisectomy at the New York Downtown Hospital. Tr. 338, 346-403. The preoperative and postoperative diagnoses were herniated disc at vertebrae L5-S1. Tr. 346-48. Ten days after surgery, Dr. Howard M. Baruch examined plaintiff and reported that she appeared to be doing well. Tr. 412. Plaintiff complained of lower back pain. IdPost-operatively, Williams underwent physical therapy at Vassar Brothers Hospital Department of Physical Medicine until September 27, 1996. Tr. 404-08. During this therapy, plaintiff complained of left shoulder, back and knee pain. Id.
On December 16, 1996, plaintiff was examined by Dr. Eaton. Tr. 411. Williams complained of knee and ankle burning and swelling, and left shoulder pain with an occasional decrease in range of motion. IdDr. Eaton reported some mild crepitus in plaintiff's right knee with a full range of motion and normal motor functioning. Dr. Eaton's diagnosis was mild impingement of the right shoulder, mild patellar-femoral pain, and status postmicrodisectomy with no radicular symptoms. Tr. 411.
Dr. Eaton examined plaintiff again on March 19, 1997. Tr. 410. Dr. Eaton's impression was patellar tendonitis, left shoulder impingement, and plantar fasciitis. Id He recommended a podiatrist, a home exercise program, and Tylenol for pain. Id.
In March and April, 1997, plaintiff was treated by Dr. Steven T. Cornell, a podiatrist, for Achilles tendonitis bilaterally and spurs on both heels. Tr. 420. Dr. Cornell prescribed medication and orthotic foot supports. Tr. 421, 423. Dr. Cornell stated that Williams did not have any limitations lifting or carrying, but that she was only able to stand or walk for a maximum of two hours per day. Tr. 422-423. Plaintiff had no limitation with regard to sitting, pulling, pushing or manual manipulations. Id.
On July 22, 1997, plaintiff was examined by Dr. Pamela Pedersen at the request of the New York State Department of Social Services. Tr. 424-26. Plaintiff complained of back pain radiating into both legs, numbness in her toes, chronic left side neck and shoulder pain, and pain and swelling in both knees. Tr. 424-25. Examination of her cervical spine revealed tenderness to palpitation over the left cervical paraspinal and scalene muscles. Tr. 425 There was also some tenderness over the left trapezius.Id Forward flexion was possible to 20 degrees, extension was 10 degrees, right lateral flexion was limited to 30 degrees and associated with pain. Id Biceps, triceps and grasp strength was 4/5 plus in the left upper extremity. Id The right extremity was normal. Id There were no sensory or reflex deficits in the upper extremities. Id.
Dr. Pedersen's examination of plaintiff's lumbar spine revealed tenderness over the left lower lumbar spine processes and upper sacrum. Tr. 424-26. There was no muscular spasm. Tr. 426. Forward flexion was possible to 80 degrees. Id Lateral flexion was 20 degrees bilaterally. Id: There were no motor, sensory, or reflex deficits in the lower extremities. Id. Seated and supine straight leg raising was negative.Id. Plaintiff could rise on her legs and toes and assume a squatting position. Id Gait without the assistance of the cane was normal. Id Knees revealed full range of motion without pain or crepitus. Id Dr. Pedersen indicated that plaintiff had pain and some restricted range of motion.Id There were no neurologic deficits in her lower extremities. Id Regarding her cervical spine, there was restriction in range of motion and some weakness in plaintiff's left arm and hand, with no sensory deficit. Tr. 425. Dr. Pedersen also indicated that Williams had symptoms suggestive of plantar fasciitis and recommended heel cord stretching exercises. Tr. 426. Dr. Pedersen concluded that plaintiff was capable of sedentary work. Tr. 425-26.
4. Medical Evidence Submitted to the Appeals Council
After the ALJ's decision, plaintiff submitted additional medical evidence to the Appeals Council. Tr. 2-19. This evidence consisted, in part, of a psychological evaluation conducted by Dr. Marc E. Weiler, a psychologist, on February 2, 1994. Tr. 8-15. Dr. Weiler found that plaintiff had a Verbal IQ of 78 and a Non-Verbal IQ of 70. Tr. 11. Dr. Weiler concluded that Williams was borderline mentally retarded and that she suffered from a depressive disorder. Tr. 15.
Plaintiff also submitted a report from Dr. Neal R. Dunkelman. Tr.16-17. Dr. Dunkelman performed an electromyogram evaluation of plaintiff on May 4, 1994 and concluded that his findings where consistent with a moderately severe left carpal tunnel syndrome. Tr. 17. Additionally, the results were suggestive of an early right carpal tunnel syndrome. Id.
III. DISCUSSION
1. Substantial Evidence
A. Applicable Law
A final determination by the Commissioner must be affirmed if it is based on substantial evidence. See 42 U.S.C. § 405(g) ("the findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive."); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).
Within this context, the term "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) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
Accordingly, a court's task is limited to determining whether the ALJ's decision is based on correct legal principles and supported by substantial evidence in the record. See, e.g., Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998); Cleveland v. Apfel, 99 F. Supp.2d 374, 379 (S.D.N.Y. 2000); Rosa, 168 F.3d at 77. A court may not substitute its own judgment for that of the ALJ, even if it may have reached a different result upon a de novo review. See, e.g., Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) (citing Valente v. Secretary of Health Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984)); Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990); Cleveland, 99 F. Supp. 2d at 11.
2. Medical Improvement Standard of Review for Termination of Disability Benefits
Social Security benefits are part of a federal program that provides benefits to individuals with disabilities who meet certain statutory requirements. See 42 U.S.C. § 1381. The ALJ determined that Williams was disabled within the meaning of the Act from September 14, 1992 to December 1, 1997. That finding is not contested.
The Act defines disability as an "[i]nability 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." 12 U.S.C. § 423 (d)(1)(A) and 1382c(a)(3)(A).
After a declaration of disability entitling the claimant to DIB and SSI benefits, benefits can be terminated based on a finding that the relevant impairment, has ceased, no longer exists or is not disabling. See 42 U.S.C. § 423(f). To terminate benefits, the Commissioner is required to obtain substantial evidence" of "any medical improvement" demonstrating that the claimant is now able to engage in substantial gainful activity. 42 U.S.C. § 423(f)(1) and 1382c(a)(4).
To determine the ability to engage is substantial gainful activity, "[the Commissioner] will consider all [claimant's] current impairments not just that impairment(s) present at the time of the most recent favorable determination. If [the Commissioner] cannot determine that [the claimant is] still disabled based on medical considerations alone . . ., [the Commissioner] will use the new symptoms, signs and laboratory findings to make an objective assessment of [claimant's] functional capacity to do basic work activities or residual functional capacity and [the Commissioner] will consider [claimant's] vocational factors." 20 C.F.R. § 404.1594(b)(5); See also, Hall v. Chater, No. 94 Civ. 1401, 1996 WL 118544, at *3 (E.D.N.Y. Mar. 13, 1996); Fleming v. Sullivan, 806 F. Supp. 13 (E.D.N.Y. 1992); Bosley v. Shalala, 879 F. Supp. 296 (W.D.N Y 1995)
3. Vocational Expert
The Commissioner has the burden of proving that there is work that the claimant can perform. See, e.g., Rosa, 168 F.3d at 80; Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000); Jimenez v. Masanari, No. 00 Civ. 8957, 2001 WL 935521, at * 7 (S.D.N Y 16, 2001). Ordinarily, the Commissioner satisfies this burden by resorting to the applicable medical vocational guidelines (the "Grids"). See 20 C.F.R. Pt. 404, Subpt. P. App. 2; Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986).
Exclusive reliance on the Grids, however, is inappropriate where a claimant's exertional impairments are compounded by significant nonexertional impairments that limit the range of sedentary work that a claimant can perform. See 20 C.F.R. Part 404, Subpart P, App. 2, §§ 200.00(e)(2), 201.00(h); see also Zorilla, 915 F. Supp. at 667;Sobolewski, 985 F. Supp. at 311. Reliance on the Grids is also inappropriate where there is no substantial evidence that a claimant can perform a full range of a particular type of work. See Nelson v. Bowen, 882 F.2d 45, 49 (2d Cir. 1989) (individual assessment required where there is insufficient proof that a claimant can perform a full range of sedentary work)
An "exertional limitation" is a limitation or restriction imposed by impairments and related symptoms, such as pain, that affect only a claimant's ability to meet the strength demands of a job. See 20 C.F.R. § 404.1569a(b). A "nonexertional limitation" is a limitation or restriction imposed by impairments and related symptoms, such as pain, nerves, anxiety, depression, difficulty maintaining attention or concentrating, or difficulty understanding or remembering detailed instructions, that only affect a claimant's ability to meet the non-strength demands of a job. See 20 C.F.R. § 404.1569a(c)(i)(iv), (v); see also Sobolewski v. Apfel, 985 F. Supp. 300, 310 (S.D.N.Y. 1997); Zorilla v. Chater, 915 F. Supp. 662, 667 (S.D.N.Y. 1996).
Where application of the Grids is inappropriate, the Commissioner must call a vocational expert to testify as to claimant's capacity to work.See 20 C.F.R. Part 404, Subpart P, App. 2, § 200.00(e)(2); Pratts v. Chater, 94 F.3d 34, 38-39 (2d Cir. 1996); Bapp, 802 F.2d at 605-06;Sobolewski, 985 F. Supp. at 310; Zorilla, 915 F. Supp. at 667.
B. The Commissioner's Decision
In this case, the ALJ first determined that plaintiff had not engaged in any substantial gainful activity since December 20, 1993, the date of the last favorable determination. Tr. 35. Second, the ALJ concluded that plaintiff did not have an impairment or combination of impairments that rose to the level of severity set out in the list of impairments. See 20 C.F.R. Part 404, Subpt. P, App. 1; Tr. 36. The ALJ then determined that medical improvement related to plaintiff's ability to work had occurred and that none of the exceptions to the medical improvements standard applied. Id Although the ALJ found that plaintiff was unable to perform her past work as a cleaner, he determined that she had the residual capacity to perform a full range of sedentary work. Tr. 36. The ALJ concluded that there were positions in the national economy that fit plaintiff's qualifications. Id Therefore, plaintiff was found to be not disabled as of September 1, 1997. Id Finally, the ALJ discounted plaintiff's subjective complaints of pain because her lack of treatment was inconsistent with her allegations of disabling pain. Tr. 35. The ALJ concluded that plaintiff's allegations as to the frequency and severity of her pain were not fully credible. Id.
C. Plaintiff's Claims
Plaintiff contends: (1) that her nonexertional impairments were not recognized or considered, (2) that the ALJ misapplied the listings of impairments, (3) that the ALJ failed to properly determine her residual functional capacity, and (4) that the SSA did not prove that she could perform the full range of sedentary jobs which exist in the national economy. These arguments, however, are based on one principal issue: whether the additional medical evidence plaintiff submitted to the Appeals Council justifies remanding the case.
1. The Evidence Submitted to the Appeals Council Must be Considered
The Commissioner argues that this Court should not consider the additional evidence submitted to the Appeals Council because the "Court does not have jurisdiction to review the Commissioner's determination not to reopen plaintiff's claim based on new evidence." See Defendant's Reply Memorandum of Law in Further Support of the Commissioner's Cross-Motion for Judgment on the Pleadings ("Def. Reply") at 23. This argument lacks merit.
It has been established that "new evidence submitted to the Appeals Council following the ALJ's decision becomes part of the administrative record for judicial review when the Appeals Council denies review of the ALJ's decision." See Sobolewski, 985 F. Supp. at 311 (citing Perez, 77 F.3d at 45). Therefore, despite the Appeals Council's denial of review, this Court "simply review[s] the entire administrative record, including the new evidence, and determine[s], as in every case, whether there is substantial evidence to support the decision of the [Commissioner]." Lisa v. Secretary of Health Human Servs., 940 F.2d 40, 46 (2d Cir. 1991).
The new evidence was submitted by plaintiff to the Appeals Council by letter dated November 15, 2000. Tr. 4. After reviewing the evidence, the Appeals Council stated the following in a letter dated December 22, 2002:
the Appeals Council has considered the additional evidence submitted with your November 15, 2000 letter, a February 2, 1994, psychological evaluation report from Marc Weiler, Ph.D., and an EMG report dated May 4, 1994, from Neal Dunkelman, M.D., and concludes that this evidence is new but not material evidence. Consequently no basis for reopening is established.
Tr. 2.
As suggested in this letter, the Commissioner may revise a final determination or decision if "new and material evidence is furnished."See 20 C.F.R. § 416.1487 and 416.1489. It is undisputed that this evidence was new. Id This court must determine whether the evidence was material, that is, both probative and relevant to the claimant's condition during the time period for which benefits were discontinued or denied. See Lisa, 940 F.2d at 43; Cutler v. Weinberger, 516 F.2d 1282, 1285 (2d Cir. 1975). The concept of materiality requires, in addition, a reasonable possibility that the new evidence would have influenced the Commissioner to decide a claimant's application differently. See Szubak v. Secretary of Health Human Servs., 745 F.2d 831, 833 (3d Cir. 1984);Chaney v. Schweiker, 659 F.2d 676, 679 (5th Cir. 1981).
Dr. Weiler's psychological evaluation states that plaintiff had an IQ "within the Average Borderline Mental Retardation range of intelligence." Tr. 10. This evidence is material for a number of reasons. First, a person's IQ is not likely to change substantially during her adult life.See Luckey v. United States Dep't of Health and Soc. Servs., 890 F.2d 666, 668 (4th Cir. 1989). Thus, plaintiff's IQ in 1994 most likely remained the same through August 1997, when plaintiff was declared no longer disabled. Id Second, the Commissioner does not dispute that a psychological evaluation has probative value. See 20 C.F.R. § 404.1513(a)(1) ("[l]icensed or certified psychologist" are sources of medical evidence). Third, Dr. Weiler's psychological evaluation is relevant to the following three issues: (1) whether plaintiff's mental impairment alone, or in combination with other impairments, meet or equal in severity the listings of impairments, see 20 C.F.R. Part 404, Subpt. P, App. 1, § 404.525; (2) plaintiff's functional capacity and her ability to perform a full range of sedentary work, see 20 C.F.R. § 404.1594(f) and 404.994(b)(iv); and (3) whether given a combination of exertional and nonexertional impairments, a vocational expert was necessary to determine plaintiff's ability to perform a full range of sedentary work.
The Social Security regulations establishes as an example that:
[A]n illiterate 41 year old individual with mild mental retardation (IQ of 78) is restricted to unskilled sedentary work and cannot perform vocationally relevant past work, which had consisted of unskilled agricultural field work; his or her particular characteristics do not specifically meet any of the rules in appendix 2, because this individual cannot perform the full range of work defined as sedentary. In light of the adverse factors which further narrow the range of sedentary work for which this individual is qualified, a finding of disabled is appropriate.20 C.F.R. Part 404, Subpart P, App. 2, § 201(h).
Dr. Weiler's psychological evaluation justifies remanding the case to the Commissioner for further inquiry regarding plaintiff's mental and nonexertional impairments and her residual functional capacity. This Court "may, . . . at any time order additional evidence to be taken before the Commissioner of Social Security, 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). The Second Circuit has indicated that a plaintiff need not make a showing of good cause when the evidence is submitted to the Appeals Council, although such a requirement is imposed when a plaintiff seeks to bring before a district court evidence not previously submitted. See Perez, 77 F.3d at 45.
IV. CONCLUSION
For the reasons set forth above, the Commissioners's motion for judgment on the pleadings is denied and plaintiff's motion for judgment on the pleadings is granted to the extent of vacating the Commissioner's decision and remanding the case for further proceedings consistent with this Opinion.
In a Notice of Motion and Affirmation dated April 1, 2002, plaintiff submitted to this Court a new psychiatric evaluation dated March 12, 2002, consistent with a diagnosis of depression and mild mental retardation. This additional evidence need not be examined in detail as it will be made part of the record on remand and considered in due course.
In addition, the Court has considered a letter from the Government dated April 15, 2002, requesting that any action on the motion be deferred so that the Commissioner can consider newly submitted medical evidence. This request is denied as this Court has already remanded the case and any new evidence can be considered by the Commissioner on remand.
The above-captioned case, hereby remanded pursuant to 42 U.S.C. § 405(g), is closed subject to reinstatement by either party upon the completion of administrative proceedings whereupon the Court will enter final judgment. Such reinstatement shall be effected by letter application to this Court without the need for filing a new action or obtaining a new docket number. The Clerk of the Court is directed to close this case.