Opinion
97 CIV. 4037 (DLC)
October 15, 2001
For Plaintiff: Carolyn A. Kubitschek, Lansner and Kubitschek, 325 Broadway, Suite 201, New York, N Y 10007.
For Defendant: Susan D. Baird, Office of the United States Attorney, Southern District of New York, 100 Church Street, New York, N Y 10007.
OPINION AND ORDER
On June 4, 1997, Lorenzo Hiciano ("Hiciano") filed this action pursuant to the Social Security Act seeking reversal of a final decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's application for Supplemental Security Income ("SSI") benefits. Plaintiff has moved for judgment on the pleadings pursuant to Rule 12(c), Fed.R.Civ.P., or in the alternative, for remand to the Commissioner. The Government has cross-moved for judgment on the pleadings. For the reasons set forth below, the plaintiff's motion is granted and the Government's motion is denied.
BACKGROUND
Hiciano was born on April 10, 1958, in the Dominican Republic, and attended school there through the eighth grade. Hiciano "is unable to communicate effectively in English." When he came to the United States, Hiciano worked as a general factory worker at Crafting Container International from 1990 to 1993. He suffered an injury to his back while unloading a truck at Crafting Container International in January 1993. He attempted to continue working after his injury, but stopped working in April 1993.
Medical History
Dr. Michael Bercik treated Hiciano from May 1993 through March 1995, and evaluated him in May 1995 and August 1995. On May 26, 1993, Hiciano complained of lower back pain and numbness extending into his left leg. Magnetic resonance imaging ("MRI") showed herniated discs in his back. Dr. Bercik prescribed a two-month course of physical therapy. On October 6, 1993, a lumbar myelogram and computerized tomography scan also showed herniated discs. On October 28, 1993, Dr. Bercik performed surgery on Hiciano's spine, specifically a lumbar laminectomy and disc excision.
After this surgery, Hiciano reported that his leg and back pain was less than it was before surgery. An examination of Hiciano showed negative straight leg raising test and no muscle spasm. On January 14, 1994, an MRI showed post-operative scarring. On February 21, 1994, Dr. Bercik opined that Hiciano was able to return to work, but was restricted from lifting more than 25 pounds and frequent back bending over 45 degrees. On March 8, 1994, Dr. Bercik reported that Hiciano had returned to his job on February 28, 1994, but did not work because no light-duty work was available for him. Dr. Bercik released Hiciano from his care, stating that plaintiff did not require further care unless he had new or severe recurrent complaints.
In a report dated May 23, 1995, Dr. Bercik stated that plaintiff had permanent residual injuries from his lumbar discs that caused pain. In his opinion, Hiciano could sit a total of four hours, stand a total of four hours, and walk up to three hours in an eight-hour day. Dr. Bercik stated that Hiciano could lift and carry ten pounds frequently, and 25 pounds occasionally.
Dr. Bercik stated that work on a regular and continuous basis would not cause plaintiff's condition to deteriorate, and that he was able to travel by bus and subway. He stated that, from an orthopedic standpoint, Hiciano could work within the above restrictions on a regular, full-time basis.
On August 7, 1995, Dr. Bercik examined Hiciano again. Hiciano told Dr. Bercik that he had not received any treatment since Dr. Bercik had last treated him in March 1994. Dr. Bercik diagnosed post-herniated lumbar discs, and stated that Hiciano had "reached the maximal benefit of treatment."
Hiciano was also examined by various doctors for insurance and Workers' Compensation purposes. Dr. Jack Siegal evaluated Hiciano for the Fireman's Fund Insurance Company on June 17, 1994. He stated that Hiciano was "employable." Dr. William Tevlir and Dr. David Myers examined Hiciano for Workers' Compensation purposes on July 11, 1994. The doctors assessed a permanent orthopedic disability of 55 percent. Dr. Talaxi Shah also examined Hiciano for Workers' Compensation purposes on July 13, 1994. Dr. Shah opined that Hiciano had a 30 percent neurological disability.
Dr. Ananya Banerjee, a rehabilitation specialist, performed a consultative examination on September 8, 1994. Dr. Banerjee diagnosed lower back pain, and assessed Hiciano's functional capacity as "lifting and carrying, standing and walking, pushing and pulling light, sitting moderate." Dr. Daoud Karam, an orthopedist, examined Hiciano on November 12, 1994. He stated that Hiciano's lower back pain limited him in lifting heavy objects and in pushing or pulling.
Plaintiff was treated at the Columbia Presbyterian Hospital Clinic from November 1994 through October 1999. A lumbosacral MRI was performed on December 1, 1994, and an x-ray of Hiciano's lumbar spine was taken on December 5, 1994. On January 19, 1995, a doctor examined Hiciano, and based on clinic and laboratory tests, assessed degenerative joint disease and a herniated disc "with mild spinal stenosis." The doctor recommended that Hiciano try aggressive physical therapy.
On May 9, 1995, Hiciano reported no relief with physical therapy. He was advised to continue physical therapy and attend a pain clinic. A treatment note from Dr. Chen, a physician at Columbia Presbyterian, dated June 6, 1996, indicated that Hiciano had undergone an appendectomy on May 3, 1996. On August 12, 1996, Dr. Chen wrote a letter, addressed "To Whom it May Concern," about plaintiff. He stated that plaintiff was unable to stand or sit for longer than 30 minute periods. He also stated that plaintiff's back injury affected his bladder, and that plaintiff was unable to hold his urine for long periods of time. In his opinion, plaintiff should be declared unable to work, "especially at jobs that require physical labor or long periods of sitting."
Plaintiff was seen at the Columbia Presbyterian back clinic on August 13, 1996, where x-rays of his back were taken. The examining doctor assessed failed back surgery with "no definite . . . evidence of radiculopathy." He prescribed physical therapy, a lumbar corset, and non-steroidal anti-inflammatory medication.
Hiciano was examined by Dr. Chen at Columbia Presbyterian on August 23, 1996. According to Dr. Chen, plaintiff had chronic back pain which did not improve with the previous surgery but had shown modest improvement with medication. Doctors at the Columbia Presbyterian rehabilitation clinic prescribed Hiciano a straight cane on October 21, 1996. Dr. Chen examined plaintiff again on January 2, 1997. A neurological evaluation showed no strength deficits in plaintiff's legs and no obvious muscle wasting. Plaintiff was continued on Dilaudid, which he said helped ease his back pain.
Dr. Henrikson, a doctor at Columbia Presbyterian, saw Hiciano on November 17, 1997. He noted that Hiciano had been referred to a pain clinic where he had received a steroid injection without relief. He prescribed Hiciano Daypro and Ultram, and remarked that Hiciano was dependent on Dilaudid. On December 8, 1997, Dr. Henrikson reported that plaintiff appeared to be comfortable on Ibuprofen and Tylenol.
Hiciano continued to be seen at Columbia Presbyterian every few months during 1998. On March 19, 1998, Dr. Henrikson stated that Hiciano either had chronic back pain because of adhesions or scarring that might need chronic pain control, or that his pain was exacerbated by depression, or that he was malingering. On May 1, 1998, Dr. Henrikson stated that plaintiff's back pain was under acceptable control with medication.
On October 9, 1999, Dr. Henrikson saw plaintiff again. He noted that Hiciano had been started on Elavil in June 1999, with modest improvement until Hiciano ran out of the medicine. He prescribed Elavil again and continued Hiciano on Tylenol and Ibuprofen.
On February 25, 2000, Dr. Mohammed Khattak, an orthopedist, performed a consultative examination of Hiciano. Dr. Khattak noted that plaintiff walked with a cane, but assessed that he was able to carry 20 pounds frequently and up to 50 pounds occasionally. Dr. Khattak opined that Hiciano's ability to stand, walk, sit, push, and pull were not affected by his impairment.
Dr. Henrikson submitted a report dated April 18, 2000. He stated that he had treated Hiciano once every two months since July 1997, and had last seen him in April 2000. Dr. Henrikson diagnosed "chronic pain secondary to . . . failed laminectomy." He stated that further surgery was not needed, and that plaintiff was able to accomplish activities of daily living. The doctor opined that plaintiff could sit, stand, and walk for one hour at a time, and could lift and carry up to 10 pounds. He stated that plaintiff could not use leg and foot controls because of pain. He further stated that plaintiff could not work a 40 hour week because of back pain, and could not do sedentary or light work.
Dr. Henrikson also said that strain from regular employment could worsen Hiciano's condition.
Procedural History
Hiciano applied for SSI benefits on July 7, 1994. The application was denied initially, and by Administrative Law Judge Newton Greenberg ("ALJ") after a hearing held on August 23, 1995.
Hiciano then requested an Appeals Council review. The Council denied his request for review on January 29, 1997, and this action followed. Pursuant to a stipulation by the parties, this Court remanded the case to the Commissioner for further administrative proceedings on November 17, 1997. On July 20, 1999, the Commissioner filed the administrative record. Pursuant to a stipulation by the parties, the case was remanded to the Commissioner for further administrative proceedings on November 1, 1999. On May 17, 2000, Hiciano had a second hearing before ALJ Greenberg. In a decision dated July 20, 2000, the ALJ again denied Hiciano benefits. On August 11, 2000, Hiciano returned to this Court to appeal the ALJ's decision.
DISCUSSION
A. Standard of Review
In reviewing a decision of the Commissioner, a court may "enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). The findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive. Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995). "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.'" Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (citation omitted).
Thus, the reviewing court is not to decide the case de novo. Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990). This Court may set aside a determination of the ALJ only if it is based upon legal error or is not supported by substantial evidence. Rosa, 168 F.3d at 77; Beauvoir v. Chater, 104 F.3d 1432, 1433 (2d Cir. 1997).
To be considered disabled under the Act, a claimant must demonstrate:
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). Further, the claimant's impairment must be "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." 42 U.S.C. § 423(d)(2)(A). The disability must be "demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3).
The Social Security Administration uses a five-step process when making determinations of disability. See 20 C.F.R. § 404.1520 and 416.920. The Second Circuit has summarized this procedure 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 (citation omitted). A claimant bears the burden of proof as to the first four steps, while the Commissioner bears the burden in the final step. Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998).
B. Commissioner's Findings
In his decision, the Commissioner found that (1) Hiciano is has not engaged in substantial gainful activity since at least July 7, 1994; (2) he has residual effects of spinal surgery; (3) he does not have an impairment or combination of impairments listed in or equivalent to those listed in Appendix 1, Subpart P, Regulations No. 4; (4) he is unable to perform his past relevant work as a factory laborer; (5) he has the residual functional capacity to perform sedentary work; and (6) based on Hiciano's residual functional capacity to perform sedentary work, age, education, and work experience, he is not disabled.
C. Objections to the Commissioner's Decision
Hiciano objects to the Commissioner's finding that he retains the residual functional capacity to perform sedentary work. Hiciano argues that: (1) the Commissioner erred by failing to give proper controlling weight to two of his treating physicians; (2) the ALJ failed to evaluate his subjective complaints of pain properly; and (3) the ALJ failed to meet his burden of demonstrating that he retains the residual functional capacity to perform sedentary work.
The law gives special evidentiary weight to the opinion of a claimant's treating physician. The regulations provide:
Generally, we give more weight to opinions from your treating sources. . . . If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight.20 C.F.R. § 404.1527. When an opinion is not given controlling weight, the ALJ considers (1) the length of the treatment relationship and frequency of examination, (2) the nature and extent of the treatment relationship, (3) the supportability of the opinion, (4) the opinion's consistency with the record as a whole, (5) physician specialty, and (6) other relevant factors. 20 C.F.R. § 416.927(d).
Based on the administrative record in this case, Hiciano appears to have had three treating physicians for his back condition: Dr. Bercik, Dr. Henrikson, and Dr. Chen. The Commissioner rejected the opinions of Dr. Henrikson and Dr. Chen, who had stated that Hiciano was not able to perform sedentary work, and instead relied on the findings of Dr. Bercik and consultative physicians.
Dr. Bercik, who treated Hiciano for his initial back injury, performed his spinal surgery, and provided him with post-operative treatment, opined that Hiciano could return to work.
As discussed above, Dr. Bercik stated that Hiciano was able to sit for two hours continuously and for a total of four hours in an eight-hour workday, was able to stand for one hour continuously and for a total of four hours in an eight-hour workday, and was able to walk up to one half hour for a total of three hours in an eight-hour workday. Further, Dr. Bercik stated that Hiciano could lift and carry up to 10 pounds frequently and up to 25 pounds occasionally. Within these limitations, Dr. Bercik found that Hiciano could sustain work on a full time basis.
Hiciano first argues that the ALJ should not have relied on the opinion of Dr. Bercik because his evaluations took place without the presence of an interpreter and Hiciano "has a poor grasp of the English language." Hiciano does not explain how any language barrier led to an incorrect diagnosis by Dr. Bercik.
Since Dr. Bercik treated Hiciano for his back injury, and performed his surgery, the ALJ did not err in relying on Dr. Bercik's opinion.
Hiciano further argues that, even if Dr. Bercik's opinion is accepted as controlling, that opinion does not show that he can perform sedentary work. Dr. Bercik stated that Hiciano could sit for a total of only four hours in an eight hour workday. The ability to sit for a total of four hours does not generally satisfy the standard for sedentary work. "According to the SSA, sedentary work `generally involves up to two hours of standing or walking and six hours of sitting in an eight-hour work day.'" Curry v. Apfel, 209 F.3d 117, 123 (2d Cir. 2000) (citation omitted) (emphasis in original).
As Hiciano points out, the ALJ did not rely on the opinions of either Dr. Henrikson or Dr. Chen, both of whom had treated Hiciano on numerous occasions. The ALJ acknowledged Dr. Henrikson's April 18, 2000 report, which stated that Hiciano could not perform sedentary exertional labor, but he did not explain why he disregarded Dr. Henrikson's opinion. The ALJ noted that Dr. Chen "has precluded even sedentary exertional limitations," but concluded that Dr. Chen's opinion lacked "detailed objective find[ing]s" and was "premised on the claimant's complaints."
The opinions of the medical consultants do not provide substantial evidence that Hiciano was able to perform sedentary work. The ALJ relied on consultative examinations by Dr. Banerjee on September 8, 1994, and by Dr. Karam on November 12, 1994. Neither Dr. Banerjee nor Dr. Karam assessed whether Hiciano would be able to perform sedentary work. For example, Dr. Banerjee's entire assessment was: "Lifting and carrying, standing and walking, pushing and pulling light, sitting moderate." According to Dr. Banerjee, Hiciano's prognosis was "fair." Further, Dr. Karam's impression was that Hiciano had "[l]ow back derangement. S/P laminectomy," and his assessment of Hiciano's ability to do work related activities was that he was "[l]imited by his low back pain which limits him in lifting or carrying heavy objects and in pushing and pulling."
The ALJ also relied on a February 25, 2000 consultative orthopedic examination by Dr. Khattak, which found that Hiciano had normal ranges of motion in his lower back and upper and lower extremities and that he could perform light exertional work. Dr. Khattak listed Hiciano's prognosis as "Stable." Again, however, Dr. Khattak did not assess whether Hiciano was able to perform sedentary work. The doctor assessed only that "[t]he claimant is able to hear, speak, sit, stand, bend, walk, reach, lift, and carry. Gross and fine manipulation in both hands is intact. The claimant does not need any assistive devices for ambulation."
Finally, the ALJ relied on non-medical evidence to support his conclusion that Hiciano could perform sedentary work. As discussed above, he concluded that because Hiciano watched television every day, he must be able to sit for a total of six hours in an eight hour workday. At the hearing, however, Hiciano testified that he watched television for a half hour and would then get up and "walk around the apartment for a while." The ALJ also found that, because Hiciano walked his child to school every day and was the child's primary care giver, he could walk for six blocks at a time and could stand for one hour continuously every two hours. Hiciano's ability to care for his child does not necessarily demonstrate an ability to perform sedentary work. See Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (applicant does not need to be homebound to qualify for benefits); Bridges v. Callahan, 20 F. Supp.2d 520, 529 (E.D.N.Y. 1998) (same).
In sum, the ALJ's determination that Hiciano could perform sedentary work is not supported by substantial evidence in the record. Two of Hiciano's treating physicians stated that he could not perform such work, and his other treating physician stated that he could only sit for a total of four hours in an eight-hour workday. The consultative doctors who examined Hiciano did not assess whether he could meet the requirements of sedentary work, and the non-medical evidence relied on by the ALJ does not meet his burden of proving that Hiciano could perform such work.
In light of finding that the Commissioner did not meet his burden of proving Hiciano could perform sedentary work, it is unnecessary to reach Hiciano's argument that the ALJ did not consider his subjective complaints of pain.
Where there are gaps in the administrative record, it is appropriate to remand a case to the Commissioner for "further development of the evidence." Rosa, 168 F.3d at 82-83. In this case, in which the reversal is based on the Commissioner's failure to meet his burden on the fifth step, "remand for the sole purpose of calculating an award of benefits is mandated." Curry, 209 F.3d at 124. See also Balsamo, 142 F.3d at 82.
CONCLUSION
For the reasons explained above, the plaintiff's motion for judgment on the pleadings is granted, and the Government's cross-motion for judgment on the pleadings is denied. This case is remanded to the Commissioner for a calculation of disability benefits. The Clerk of Court shall enter judgment for the plaintiff and close this case.
SO ORDERED: